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

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

The aim of the new law i s to “improve access to justice by focusing parties and their lawyers on the early resolution of disputes.” It wants to ensure that parties take “genuine steps” to resolve a civil dispute before proceedings are commenced in any federal court or tribunal.

It wants lawyers to do more than just pay lip service to ADR (alternative dispute resolution) thinking and strategies and then return to the standard litigation mode of thinking. This is definitely NOT taking “genuine steps” to resolve the dispute out of court and, best of all, BEFORE court proceedings are commenced.

The new laws, if passed, will give more power to the courts to use stricter case management powers to ensure that such genuine steps have been taken before allowing the case to be further progressed down the litigation pathway.

It will also invest the court with greater power to use cost orders at the end of a case to penalize those lawyers who are revealed to have categorically failed to have genuinely attempted to apply alternative dispute resolution strategies to avoid long and expensive litigation.

This Bill draws on the recommendations of the National Alternative Dispute Resolution Advisory Council (NADRAC) in its report published in November 2009. A copy of this Bill and the NADRAC report are available in the Free Library of this website. Just click on “home” to go to www.chriswhitelaw.com.au where you will see the link in the top bar menu.

I will keep you posted on developments in this area.

Chris Whitelaw

www.chriswhitelaw.com.au

I have been given permission by the sender of an email to publish it on this site. I will respond to it publicly in a day or so.

HERE IS THE TEXT OF THE EMAIL -

I am a Law student at the University of Western Australia currently studying Alternate Dispute Resolution.

Your website, particularly your free library, I have found very helpful to my studies and I found reading through your credo and policies quite inspiring as a young future lawyer.

I was wondering, if I could ask your opinion on a topic that would assist me greatly with an assignment, I would love to know where such a well-respected legal practitioner stood in respect to this argument.

“To be able to properly discharge their duty to their clients, legal practitioners must have thorough knowledge of mediation and other forms of alternative dispute resolution”

Why, in your opinion is it so important for Lawyers to have sound knowledge of different types of ADR, in particularly mediation? How does it affect their ability to properly discharge their duty to their clients?

I understand if you are too busy to reply to my email, I would imagine you would have an enormous workload. However, if you are able to find the time to reply, it would be greatly beneficial and very much appreciated.

Anonymous

Law Student University of Western Australia

Key National Principles for Resolving Disputes

Social justice and inclusion is advanced by:

1. Encouraging people to take genuine steps to resolve or reduce their

disputes by themselves or by using an ADR process before considering

court or tribunal proceedings

2. Encouraging people using litigation to seek opportunities to use ADR

before and at all stages during the litigation process

3. Reserving courts and tribunals for disputes that cannot be resolved

otherwise or that involve a significant public interest issue

4. Developing and promoting standard definitions of dispute resolution

processes that clearly distinguish one process from another

5. Making information widely available that enables people to choose the

most suitable process to address their dispute

6. Explaining the ADR process and the role of the practitioner to people

using an ADR service

7. Ensuring that dispute resolution services and practitioners meet

standards that aim to avoid harm and maximize effectiveness

Here is the link - <http://www.boxbreakers.com.au>

They are conducting interviews with people who they think are doing things outside of the box - i.e. in an unconventional way or breaking new ground.

Chris Whitelaw

Dispute Resolver

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

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

There is a lot of ADR happening out there these days but in my opinion a lot of it is not that effective, and much of it is no more than the hosting of inter party settlement negotiations at a suitable location that can offer a large room for joint sessions and some separate rooms for the parties to break out and talk privately amongst themselves and their advisers.

The mediator, after giving the opening speech to the parties is then relegated to a mere relayer of information and offers between the two camps who after facing each other off around the joint session table for a short a time as possible, often saying nothing to each other and allowing their lawyers to give their opening speeches, scuttle off to their respective bunkers never to set eyes upon each other again for the remainder of the so-called mediation.

This style of mediation has regrettably become common place. If it produces a successful outcome it becomes part of the statistics about the success of mediation as a form of ADR. But in reality the success was the result of a hosted settlement conference, with the mediator being given the role of host.

Effective Settlement Negotiations are just that. They are not Effective ADR.

Effective Settlement Negotiations can be just as easily conducted between willing parties to a dispute without a mediator as they can be with a mediator.

So why do so many agree to pay up to $10,000 to a mediator simply to preside over their settlement conference?

Good question.

I have attended expensive medical negligence mediations and attended settlement conferences between a medical insurer and my client without a mediator and achieved similar good outcomes.

In essence, the key success factor is often not the “ADR” but effective negotiations being conducted with two willing parties who have both identified enough reasons to hold the settlement conference and who have a mutual desire to achieve an out of court settlement.

The fact is that most disputes are settled out of court, but in the “shadow of a court hearing”.

The question I pose here is this - why is it the case that so many people, engaged in dispute, have to engage in “litigation” for months and incur huge legal bills before they feel ready to engage in effective settlement negotiations?

Is it really necessary for the majority of disputes?

I intend to explore this interesting issue in subsequent blog posts but welcome comment from any readers of this post who feel they can offer some useful insights.

Cheers…..Chris Whitelaw

This blog post focuses on one of their synergies. Ury, at p.42 had a chapter titled “Offer an Apology”. He says “Perhaps the most powerful form of acknowledgement is an apology…………We often overlook the simple power of an apology. An apology often creates the conditions for a constructive resolution of the dispute.”

Gladwell focuses on this same issue in his chapter titled “Listening to Doctors” at p.19. He sets out some fascinating information taken from studies into medical negligence litigation. He says “Patients file lawsuits because they have been harmed by shoddy medical care and something else” What is that ’something else?”

It is how they were treated by the doctor - on a personal level.

He says that what comes up again and again in malpractice cases is that patients say they were rushed or ignored or treated poorly. Studies have revealed that patients tend not to sue doctors that they like.

Patients don’t like doctors who don’t take the time to explain things properly; who don’t relate to them as a whole person; who don’t take the time to explain what happened and to answer their questions. It is the doctors who fail in these ways that end up being sued. So the RELATIONSHIP is at the heart of the decision to sue or not to sue.

ACTIVE LISTENING was found to be a trait that endears doctors to their patients. It is all about HOW they talk to their patients. It comes down to a matter of respect and the simplest way this is communicated is through tone of voice.

The MORAL of these two tales - if you are in a professional relationship with a client and you wish to minimize the chances of ever being sued if you happen to be negligent or careless - pay attention to your active listening skills and how to communicate with the client and ensure that they feel you are treating them with respect. And, if you know you hurt their feelings or that they have been hurt by your mistake - apologize.

New tort laws make provision for apologies to be offered by the service provider without it being used against them as an admission of liability But how many professionals are putting this liberty into productive and compassionate action?

Something to think about.

Chris Whitelaw

Barrister and Mediator