ATTORNEY-GENERAL

HON ROBERT McCLELLAND MP

MEDIA RELEASE

4 November 2009

Attorney General, Robert McClelland, today launched the National Alternative Dispute Resolution Advisory Council (NADRAC) Report into alternative dispute resolution in the civil justice system.

In June last year, the Attorney asked NADRAC to enquire into and identify strategies to remove barriers and provide incentives to promote the greater use of appropriate dispute resolution options as an alternative to formal litigation.

The report titled, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction, finds that alternative dispute resolution (ADR) remains significantly under utilized and that a key barrier is a lack of knowledge and understanding amongst the profession, litigants and the general public.

The report contains 39 recommendations aimed at improving the ADR system and encouraging its greater use, including imposing a legislative obligation on prospective litigants to seek to resolve disputes before they go to court;

The Government will closely examine the report’s recommendations, which complement and build on our commitment to improve access to justice.

A copy of the report is available at www.nadrac.gov.au or at www.ag.gov.au.

If you have been reading my blog posts since this blog opened about 8 weeks ago you know that  a constant theme has been that ADR (alternative dispute resolution) will nine times out of 10 offer better (i.e. more efficient and less expensive) methods to help people and businesses resolve their disputes than the combative and confrontational litigation model.

You will also see that I did an early review of the new ADR organization “End Dispute” backed by former Chief Judge of the Commercial Division of the Supreme Court Andrew Rodgers and by Justice Michael Kirby after he retired from the High Court - where End Dispute is the business world’s own response to the tortuous litigation model that drains their pockets and puts all the power and control in the hands of lawyers and judges.

So I was pleasantly surprised when, this morning, I unrolled my Saturday Financial Review, and saw the heading “Lawyers’ Cosy Club Threatened.”

Here is a summary of that articles written by James Eyers -

• EndDispute was officially launched by the Federal Attorney General in June 2009 at Parliament House in Sydney to, in his words “celebrate a new venture” and he lamented the the cost to taxpayers of providing well heeled litigants with courts to wage corporate battles.
• The AG said “In these difficult economic times it is critical to ensure that businesses can resolve disputes in quicker and more cost effective ways and ADR has a critical role to play here.”
• A trend is under way that may not be well received by the legal fraternity. They are now facing rivals who aim to undercut them by simplifying complexity for clients and helping them sort out their problems outside the court system and thereby avoiding its attendant financial and emotional stress.
• This alternative way of addressing and resolving disputes will help clients avoid their cases being managed by lawyers in a way that keeps them endlessly running on with the meter ticking relentlessly.
• Organizations like End Dispute will charge a management fee rather than charge on a time costed basis.
• Such organizations will focus on what are the “real issues” of the dispute not just the “legal issues” identified by lawyers.
• The new process of dispute resolution will focus on such methods and tools as “early neutral evaluation”, mini-trials and versions of the European civil justice hearings that focus only on documents with the assistance of a trained facilitator selected from a panel of experts.
• Many of the panel experts are non-lawyers - but they have training and background skills eminently suitable to help resolve disputes in their area of expertise.
• If organizations like End Dispute succeed it will be because lawyers are failing to efficiently manage litigation and failing to meet the expectations of both the clients and the efficient administration of justice.
• Justice Kirby has commented “The cardinal weakness of the legal system is that access to justice in the hands of lawyers is occasioned by the highly expensive technique of interposing talented lawyers between the decision-maker and the disputants.”
• Justice Rogers has said “Lawyers can often inflame a conflict.”  He singled out cross examination “which seeks to tear holes in opponents.” He said this was not conducive to ongoing business relationships.
• Justice Rogers said that 90% of commercial disputes turn on issues which are business issues, not legal issues.”
• ADR aims to shortcut the process of factual exploration that takes place in the litigation model. ADR seeks solutions that often have nothing to do with “legal principle”, which is what lawyers chiefly focus on. They look for solutions that will achieve a sensible commercial outcome.
• The article reports that Mary Walker, a barrister and ADR specialist who is Chair of the Law Council’s expert standing committee on ADR as saying “The arrival of companies like End Dispute should be a call to arms for lawyers.” She warns that lawyers who do not react to client demands for ADR will risk losing the work to non-lawyers ADR facilitators.
• Another commentator, Joanne Rees of the Ally Group, has said “Chasing every rabbit down every rabbit hole (as lawyers are prone to do) is usually overkill but is justified by lawyers as ‘risk handling’. This process, however, necessitates the client spending a very large amount of money on unnecessary costs.”

I recognized these problems in the conventional litigation system years ago and my personal response has been to move myself more and more into the field of ADR and this culminated in my establishing a service model that reflects this new ideology in practice - and this is fully explained on my website at www.chriswhitelaw.com.au.

I launched this blog, on its own separate domain and hosting to create a timely place and space for lawyers and non-lawyers, and all other stake holders in the civil justice system who have a genuine desire to be more responsive to client needs and expectations to have their say and to engage in open discussion about how to improve on what we currently have.

Christopher Whitelaw

www.chriswhitelaw.com.au

Some of you may be aware that the 36th Australian Legal Convention has just finished in Perth, WA.  A number of keynote speeches was given by the Federal Attorney General the Hon. Robert McClelland.

When speaking about “Access to Justice” the AG said this “The reality is that there are many situations where courts are the last place people will get the outcome they are looking for to resolve their issues. I think there is an increasing tendency for lawyers to acknowledge that the best thing they can do for their clients is keep them out of court. Often a full flow court case will be completely disproportionate to the issues in dispute.”

Mr. McClelland made mention of the Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008 that is before Parliament but is not yet enacted into law. He expressed his hope that the bills will be passed into law by the end of 2009. The Bills contain important case management reforms to improve the operation of the Federal Court. He said that “the centre-piece of this is a new overarching obligation to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.” The case management reforms will amongst other things permit the court to refer questions arising in proceedings to a referee for inquiry and report. The AG said “This is an important reform that will provide greater flexibility in obtaining expert assistance and will enable litigation to be managed more effectively.”

The AG appointed an Access to Justice Taskforce  to undertake a comprehensive examination of the federal civil justice system with a view to developing a more strategic approach to access to justice issues.

He made a number of key points that are relevance to considering a wider and more effective use of alternative dispute resolution mechanisms to resolve disputes -

• The cost of legal services is a major barrier to people accessing the justice system.
• People often have a hard time understanding “legal events”.
• The public perception that engaging a lawyer is too costly will be difficult to shift when many lawyers remain wedded to a time sheet costing that is based on time rather than outcomes. This system often rewards inefficiency over value.
• What is needed is a stronger emphasis on early intervention and dispute prevention.

He said “it is proposed that a triage process be developed where individual problems are assessed for the most appropriate means for dispute resolution. Every citizen has a right to their day in court, but we as practitioners have a responsibility to ensure that step is the last, not first, recourse. Where there are more cost effective and expeditious ways of resolving disputes these should be specifically pointed out.”

I have highlighted these chief points made by the Attorney General as they tie in very well with the points I have been highlighting myself since launching this blog about 6 weeks ago.

Indeed this is the very reason I launched this blog and am seeking to make it a convenient forum for a national discussion about HOW to make better use of ADR (alternative dispute resolution) skills, strategies and methodologies to improve the overall functioning of the civil justice system and to improve access to justice via ways that do not place the chief focus on the law and on legal classifications that most people just cannot relate to and which often steers them away from what are the REAL ISSUES for them.

Christopher Whitelaw