THE ART OF THE DISPUTE RESOLVER

Disputes are part of life. Like Death and Taxes, they are simply unavoidable.

So, if they are unavoidable, it begs the question – how well prepared are you to deal with one?

Why do we take out insurance cover? For most of us the insurable event never comes to pass (touch wood). But we take out the cover and pay the annual premium “just in case”. If the event does come to pass we take a deep sigh of relief that we are backed up by insurance and do not have to meet the cost out of our own pockets.

Many disputes are in fact insurance claims of one kind or another. We let the insurer handle those disputes and they meet the costs involved. If they want to spend thousands, tens of thousands or even a hundred thousand dollars or more fighting those disputes in court – so be it – it is at their expense.

But, and this is the point of this article, if you get caught up in a dispute that is not backed by insurance, you and, if you are in business, your business will be directly exposed to the potential adverse impacts of that dispute.

What are those possible adverse impacts?

Here is a possible list –

1. An adverse impact on your time;

2. An adverse impact on your finances and savings;

3. An adverse impact on your business revenue and net profit;

4. An adverse impact on the operation and performance of your daily business affairs;

5. An adverse impact on your mental state;

6. An adverse impact on your family time and family relations;

7. An adverse impact on your health;

8. An adverse impact on your social life;

9. An adverse impact on your available resources for investment and wealth creation.

Disputes, if they get out of hand and out of control, can quickly dominate your life, sap your life force, sap your bank account and turn your life into a living hell.

Ask anyone who has been through a difficult family law dispute. Ask anyone who has been engaged in a long running dispute with the neighbour from hell. Ask any business owner who had a business dispute dragged into court and been at the mercy of commercial litigation for a year or more.

It is quite understandable why people tend to dislike litigation lawyers. They profit financially from other peoples misadventure and back luck. In most commercial disputes they have to pay their lawyer regardless of whether they win or lose the dispute. But they cannot survive in the legal civil justice system without having a lawyer. So they feel vulnerable and powerless and have to bear substantial pain and sacrifices to keep meeting the voracious legal fees.

A recent study in the USA demonstrated that most American lawyers who participated in the survey could not afford to pay for their own services if they had the misfortune to stand in their clients’ shoes.

Wow! That underscores the truth of the statement that condemns the civil justice system in most civilized nations – “Justice” is only for the rich or for the very poor who qualify for full civil legal aid services. The vast middle class must pay their way and so “justice”, in the end, is a matter of affordability. “Justice” must be tailored to the budget at hand.

So, I have talked about “disputes”, but what about “dispute resolution”?

I have been engaged in the business of dispute resolution for the last 29 years – as a solicitor, then as a barrister and since 2000 as an accredited mediator. So I think I can fairly say I know a lot about the matter of disputes and dispute management and dispute resolution.

I lecture many times each year on this subject – to members of the public, to lawyers and to other dispute resolvers.

The aim of this is to educate and raise awareness. What you don’t know you don’t know is far more dangerous and risky than what you know you don’t know. When being exposed to new knowledge expands your awareness and understanding as to options, avenues and choices that you were not previously aware of, you are empowered to make better quality decisions when the need arises.

So, let me impart this knowledge to you – if you ever become involved in a dispute that has the potential to become a bit of a nightmare for you (see the possible adverse impacts stated above) try to remember this – Litigation is always the last resort for dispute resolution, not the first.

If you go to see a lawyer and the lawyer starts to talk to you in the language of litigation, my advice to you is to get out of there fast before you get channelled into the civil justice litigation apparatus and start receiving those deadly monthly legal bills. Once that happens you are well and truly on the road to hell.

Based on my 29 years of experience I know for a fact that most disputes, if properly handled from the beginning by persons properly trained in the art of alternative (now often called “appropriate”) dispute resolution, can be resolved far quicker, better and less expensively than could ever be achieved via court litigation.

The Civil Procedure Act states that courts and tribunals are to try and resolve disputes brought into their jurisdiction (by the filing of a claim) in a manner that will deliver justice to the parties that is “quick, cheap and just”.

That is no doubt a noble objective to enshrine in legislation, but time and experience has shown that it is 99% of the time incapable of achievement. This is because “litigation” in an “adversarial justice system” is by its very nature incapable of achieving that objective. Its very nature ensures that litigation is time consuming, complex, demanding and expensive. This is why justice is unaffordable for most people.

Some of the most prominent and respected judges of the land have stated in the clearest terms that the current way that litigation is being conducted in Australia cannot be tolerated much longer. It is simply unviable for the majority of litigants. It is a drain on both public and private resources. Litigation continues to grow in size and complexity. Litigation is the domain of lawyers and legal thinking and legal constructs.

It is a paradigm that is foreign to most non-lawyers. Yet they are forced to adapt their dispute into the confines of that paradigm. Their own perspective and expectations regarding the dispute must be abandoned in favour of their lawyers’ perspective, which is based on laws, legal issues, evidence, and onuses of proof etcetera.

Alternative Dispute Resolution (ADR) is entirely different and adopts a totally different approach to disputes and dispute resolution. Whilst Litigation is a “Rights-based” and “Power-based” process, ADR is an “Interest-based” and consensual process.

ADR can be effectively applied at the very earliest stage of a dispute. It is entirely non-confrontational and its chief aim is to understand the drivers of the dispute by getting to understand each party’s historical and present perspective on the dispute and finding out what each party’s primary needs are to bring about a resolution of the dispute.

The ADR specialist has a range of tools in his or her ADR toolbox. This includes –

· The ability to strip a dispute down and identify its core components;

· Identify and explore issues;

· Facilitate discussion of those issues in a non-threatening, non-confrontational way;

· Assist the parties to come up with as many possible options for resolving the dispute as they can, including the use of lateral thinking and brain-storming techniques;

· Allowing the parties to stay in charge of their own dispute and to take ownership of the options they come up with for possible settlement;

· Helping the parties remove blocks to settlement and to find ways around impasses;

· Helping the parties to communicate in the most effective ways to assist dispute resolution.

In conclusion, what people want most, when they find themselves engaged in a dispute, is quick and inexpensive resolution of that dispute. Resolution does not mean that each party must achieve their optimal position or expectation. It means that they must arrive at some compromise that they both can live with and which, upon careful reflection, they each decide is preferable to litigation.

My advice to those who find themselves in a dispute is not to run to the nearest solicitor for advice unless they know for certain that that solicitor is well versed in ADR. The first most important step to take is to find a lawyer who is an ADR specialist or who can refer you to an ADR specialist. At least that way you will feel confident that you get the best possible advice from the start.

Christopher Whitelaw

Dispute Resolver, Mediator, Barrister

85 Longueville Road, Lane Cove, 2066.

Tel: 94208213

Email: cwhitelaw@counsel.net.au

http://www.chriswhitelaw.com.au