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

The cat is now well and truly out of the bag.

LEADR has just advertised a seminar where a leading ADR expert will discuss what appears to be a strong current trend in ADR practice to favour private or conclave sessions with the mediator merely providing a shuttle service between the two camps over the use of joint sessions to help the parties break down barriers and resolve impasses that are stopping them GETTING TO YES.

This statement confirms what I have been saying for some time now on this blog -that a lot of mediations these days are little more than hosted settlement negotiations with the highly paid mediator being the host with the consent of the parties.

Is this a good thing?

Is this taking ADR in the right direction?

Is this something that is more lawyer-driven - to suit legal mindsets and paradigms for dispute resolution, than client driven?

Please feel free to have your say.

Christopher Whitelaw

Barrister and Mediator