This is what now appears on the Federal Government’s new Access to Justice website at www.accesstojustice.gov .au -

“About Access to Justice

Access to justice is not just about courts and lawyers, but is also about better and early access to information and services to help people prevent and resolve disputes.

While courts are an important part of the justice system, there are many situations where other options for resolving a dispute will be faster, cheaper and more suitable in the circumstances. Often a full blown court case will be completely disproportionate to the issues in dispute.

Sometimes, simply having access to good information can help people to resolve their own disputes quickly and effectively. It may also be that parties will have an ongoing relationship after the dispute is resolved, such as a family matter or employment issue, so using a method of alternative dispute resolution that promotes agreement between the parties may be a better option. In complex and entrenched disputes, a court determination may be the most appropriate outcome. ”

This website was launched as part of the Federal Government’s initiative when introducing the Civil Dispute Resolution Bill and providing its response to the Senate Legal and Constitutional Affairs References Committee report “Access to Justice December 2009″.

The time has come for Mediators to ensure that their skills are up to the task so that “access to justice” via Mediation truly succeeds. The extent to which non-mediator lawyers will strongly recommend and endorse Mediation and other “alternative dispute resolution” strategies, including “hybrid ADR” (use of more than one ADR strategy to help successfully resolve a dispute) will correlate directly to their own perception of how well Mediators perform at Mediations.

I am well aware from talking to lawyers in the field, and from my own direct experience appearing for clients at court ordered mediations that many current mediators to whom such disputes are being referred are doing no more than presiding as the host of a settlement conference where the real prospects of success are determined by the willingness and preparedness of the lawyers and the clients to negotiate a settlement before the matter is given a hearing date by case managing judge or registrar.

This is not real mediation. The outcome is hardly ever positively affected or influenced by specific strategies and methods adopted by the mediator to facilitate discussion outside of the tightly fixed boundaries of legal issues, principles and “prospects of success” on each issue determined by the lawyers prior to the so-called “mediation”.

What intrigues me is WHY so many solicitors leave it to the last moment to conduct these settlement negotiations. Why do they feel compelled to require their clients to engage in LITIGATION for many months and run up a legal costs bill of many thousands of dollars BEFORE they say “Lets go to Mediation” before the Judge sets the trial date. The fact is that they could schedule such “hosted settlement conference” (where a mediator is asked to be the host of the settlement conference) or schedule such a conference without asking a mediator to host it MUCH EARLIER and BEFORE a whole heap of legal costs have been run up. By why don’t they?

Here is my theory - Lawyers tend to think like lawyers and their art as “litigators” is to view a dispute through legal eyes and to apply a legal perspective to  it. This legal approach to “dispute analysis”, “dispute management” and “dispute resolution” is almost the antithesis of how a skillful mediator will handle a dispute. As to how a skillful mediator will handle a dispute please refer to many of my earlier posts on this blog.

The current “hosted settlement conference” model of mediation that has taken root in the legal justice system has been created by and developed by lawyers. It is not the model of mediation that is applied by non-lawyer mediators who eschew it. It fits in with the lawyers’ paradigm of how to handle and manage a dispute. They understand “settlement negotiations” as part of handling a dispute. Most of them have not spent a lot of time truly trying to learn the art of mediation and other ADR skills that can be applied to any dispute in its infancy with the aim of resolving the dispute before it gets channelled into the legal domain and becomes “litigation” and subjected to the lawyers’ paradigm of dispute handling, management and resolution.

What the Federal Government wants is EARLY DISPUTE RESOLUTION and a reduction of Litigation and its consequential burden on the Courts, the public purse and on the lives of the litigants.

The bottom line is that part of the formula to achieve this ambition must be to up-skill more lawyers in the true Art of the Mediator, as distinct from the Art of the Lawyer and the Litigation Specialist.

Christopher Whitelaw

Mediator - www.chriswhitelaw.com.au

As many of you will now know the Federal Attorney General recently introduced the Civil Dispute Resolution Bill 2010. If made into law the Act will require prospective litigants to take “genuine steps” to resolve their legal disputes before they will permitted through the gates by the case managing judge to continue their litigation war. They will need to detail what steps they have genuinely taken to resolve their dispute out of court and without resort to litigation.

This new law will herald a new dawn for mediators and mediation. We need to be ready. In my view the new law, if enacted, is heading in the right direction.

A few days ago I successfully resolved a dispute between two business people who had done business together for over 10 years before falling out during the Global Financial Crisis. They were clearly heading down the path of litigation and if not averted could have looked forward to over 12 months of fun in the courts and probably both ended up over $100,000 each out of pocket. That is nothing unusual in commercial litigation arising out of a broken business relationship.

The two parties, and their lawyers, opted into my strict protocol for dispute resolution that covers both things to be done BEFORE mediation as well as at the Mediation.

The Mediation went to about 3pm. Settlement was accomplished and the parties were able to return to the Joint Session Room and sit opposite each other and shake hands.

This is what Mediation is all about. The path to success in Mediation is entirely different to the path to success in Litigation. In Mediation it is often the case that parties can be reconciled as well as settle their dispute. This hardly ever happens when people go down the path of Litigation.

In my next post I will provide some examples of “genuine steps” to resolve a legal dispute.

Until then…..Christopher Whitelaw

Mediator

On March 29th I was privileged to co-present to a group of lawyers and mediators at the New South Wales State Legal Conference in Sydney. I co-presented with two building experts - Howard Ryan and George Zakos. I will upload the papers and power point slides to my ADR site - www.chriswhitelaw.com.au where you can download them for free.

During the three and half hours of our session we talked about a wide range of issues for alternative dispute resolution in the building and construction industry.

Amongst the attendees were a wide range of people engaged in this field. One of the attendees worked for one of the EXPERT WITNESS service providers to the legal profession. She made the observation that a high percentage of expert witnesses express extreme frustration and disappointment with conventional litigation practice and procedure and lawyers litigation mindset and practices that keep experts polarized. They repeatedly express the view that the dispute could be resolved much quicker and less expensively if the parties would foster inter-expert dialogue from a very early stage of the dispute. They feel confident that if just this single change of approach was embraced by the legal profession it would lead to many more disputes being resolved early on and before massive legal and expert witness bills are run up.

I totally agree and support this sentiment coming from experts engaged in dispute resolution. I have been advocating this change of approach for years now.

It begs the question - WHY do so many in the legal profession rebuff this common sense attitude and approach? Why are they so intractable in adopting an approach that inevitably fosters conflict, opposition, alienation of the parties to the dispute, alienation of their respective experts, huge cost in building up evidence and boxing up all the “issues” in the case as “legal issues”?

Why? Because they are “Lawyers” applying a lawyers perception and dispute resolution blueprint to resolution of the dispute.

The Result?  Real, organic and dynamic “ADR” strategies are excluded and are given no chance to being applied from the very outset of the dispute. The conventional lawyer “mindset” prevents dynamic ADR tools and strategies from being considered from the start and brought into play. The only “ADR” that the typical conventional legal mindset is able to cater to is what has become a mutant stream of ADR bred out of the court system itself - what I have been calling nothing more than hosted settlement conferences usually arranged as a last pre-hearing step before the court decides to list the dispute for hearing before a judge.

Why is this happening? Why are lawyers not doing more to embrace the range and depth of ADR philosophy and capability and applying that to every single dispute from the very start? Is it all due to a lack of education and awareness or is it a deliberate refusal to open the door to new and better ways?

I am not alone in raising these questions. Not at all. This question is being raised by senior judges, ex-judges, attorneys general, academics and politicians. They are concerned that the conventional litigation approach, still adopted and applied by the majority of the legal profession who simply consider “ADR” to be an adjunct to the litigation approach they endorse and foster, and who simply think of ADR as no more than the “hosted settlement conference” as the penultimate step to the final hearing before a judge. The “host” is of course the selected or appointed mediator who is paid $3,000 to $5000 a day to act as host.

I discuss the “causation” of the current paradigm in more detail in my power point “Effective ADR” available as a free download from my website.

Christopher J Whitelaw

Barrister and Mediator, Sydney.

www.chriswhitelaw.com.au