Edward de Bono is one of the world’s most celebrated exponents and teachers of lateral thinking. So, to get my point across here, I am going to draw on his writings to help me expound some key principles.

Here they are -

• “Usual Thinking” is based on analysis and judgment. However, when trying to resolve conflicts we often need to design a way forward rather than judge a way forward influenced by our personal beliefs and conditioning.

• Conflicts are often best resolved using creative thinking strategies and techniques. This means shedding our perceptions and conceptions and cultivating an open mind to seek fresh possibilities.

• Potential barriers to this will usually come from egos, emotions and adversarial and competitive behaviour.

• A skilled dispute resolver will try to find ways to get the players to contribute to an idea or proposal on the table using collaborative and parallel thinking.

• Complexity needs to be replaced by simplicity and effectiveness in the thinking processes applied.

• Seeking solutions is a collective exercise, and strategies like de Bono’s ’6 Hats’ provides a structure for arriving at decisions by harnessing the focused thinking of the participants.

• The skill of the dispute resolver is to get people working co-operatively, thinking in parallel on an idea or proposal – not in opposition or in a confrontational way.

• Lateral Thinking tools and techniques are designed to find alternative solutions and options for settlement that bypasses the more obvious choices and approaches to the presenting problems and issues.

• New angles will start to emerge that may at first seem illogical, but if the participants follow through with their thinking process, an “aha” moment may be just around the corner.

• Lateral thinking strategies are used to help break people out of their heavily conditioned responses that limit the options and possibilities for settlement.

• The dispute resolver needs to create an environment that will foster better ways for the participants to interact, in order to encourage their interaction.

• They move the players away from being polarized and stuck in their positions to being willing and eager to share knowledge and ideas with a common goal to find solutions that will work for both of them.

• The dispute resolver needs to be astute and alert to the need to redress gaps in the participants own knowledge and expertise by making use of neutral experts to fill those gaps.

• There is a need to unfreeze the brain from being too logical and stuck in linear conditioned and conventional ways of thinking. This is done by using techniques that will allow the participants to view the issue from new angles and perspectives.

Regrettably for those in dispute who trot off to their nearest lawyer, most lawyers are not skilled in creative and lateral thinking.

Taking the time to find an expert in alternative dispute resolution who is skilled in the art of creative and lateral thinking, at the inception of the dispute, could well save the disputants much valuable time, stress, and heaps of money.

Lawyers have a useful role to play, but quite often their early involvement in the life of a dispute does more to exacerbate it and ripen it for litigation than to foster its quick, just and relatively inexpensive resolution.

Until my next post,

Wishing you a Merry Christmas and a Happy New Year in 2012.

Christopher Whitelaw

Barrister and Mediator

Commercial Disputes Management Centre

www.chriswhitelaw.com.au

“Mediation has impacted on the nature of practice at the Bar. More time is now spent in chambers advising how best to settle the dispute than how best to fight it in Court. Advocates have had to adjust to the change in the way the system operates so that the they now advocate strategies for settlement behind closed doors rather than utilising the forensic skills and persuasive advocacy in open court. Although the burden on the advocate in mediation is different from the burden on an advocate in a hearing before the Court, the advocate’s experience, knowledge and forensic judgments are integral to the client achieving the best outcome from mediation.

The issue of the “ripe” time to refer a matter to mediationis vexed. Some matters have a better chance of a mediated settlement if referred later in the litigious process whilst others may settle earlier in the process. It will depend very much  on the particular dispute.

However, I stress that the Court depends on the legal representatives to analyse not only the legal issues in the dispute but when it comes time to picking the time for referring the matter to mediation, to also analyse the financial, motivational or emotional issues that are driving their clients. These matters, about which the Court will know little or nothing, may be pivotal to the prospect of reaching a mediated settlement.”

I would like to offer some commentary about this extract from her Honour’s opening remarks at the ADR Workshop -

Firstly, her Honour’s remarks are hugely important for the following reasons -

• She, as one of the most senior judges of the court,  identifies a critical trend – the movement away from heavy reliance on adjudicative justice from the courts towards mediated settlements.

• Secondly, the statement is significant in that there can be no doubt that the Supreme Court supports and encourages this trend

• Thirdly, it points to the importance of “timing” and the need to go beyond the legal issues and legal analysis and to make room for other types of relevant information and analysis – the financial, motivational and emotional issues that are driving the clients. These matters need to be brought out into the open and properly looked at rather than being kept behind the scenes and out of sight.

Over the last 5 years or so we have seen a very unfortunate development – a style of mediation that lawyers have embraced as the predominant model that is a direct product of the legal mindset rather than the mindset of a true practitioner of alternative dispute resolution. I call it the “hosted settlement conference” model of mediation, a model that literally throws most of the arsenal of ADR tools out the window and relegates the mediator to being no more than an official host of lawyers from both sides of the dispute conducting a settlement conference with their clients present a few months out from the trial.This model fits very snugly into a lawyer’s overall litigious approach to resolving disputes. This model continues to foster litigation as the predominant mechanism for resolving disputes but makes it almost mandatory now for lawyers to persuade their clients to “go to mediation” before the court case manager fixes a date for trial. It is no more than a pit stop just prior to trial that is now “part of the justice system”. Lawyers get to pick up their litigation  fees all the way to the pit stop, and they have a clear financial incentive to fix the pit stop later, rather than earlier, in the litigious process. If mediation is successful the billing cycle for that matter comes to an end.

I mention this before drawing attention to some other aspects arising from her Honour’s remarks which in my view will operate to strengthen the legal grip that currently exists on “ADR” (alternative dispute resolution) that will ensure that “ADR” continues to be dumbed down to just one thing – “Mediation” – and that mediation will continue to predominantly occur later in the litigious process rather than earlier or even before commencement of litigation.

Here are my further comments and points -

• My own direct experience and my conversations with other legal and ADR practitioners convinces me that whatever discussions and conversations are going on “behind closed doors” between lawyers and their clients (as suggested by her Honour) the majority of solicitors still favour commencement of litigation as the first step and then building up the case as a show of strength before they open the door to mediation and a mediated settlement.
• Most lawyers are not highly skilled at conducting early negotiations and entering into early conversation with the opposing lawyer to establish an early framework and opportunity for the use of ADR strategies and methods to resolve the dispute BEFORE the parties are asked to commit to often very expensive process of building up their cases via affidavits and documents and expert reports in order to demonstrate superior fire power if the matter goes to trial.
• Most lawyers do not really know how to make effective use of the ADR approach early on in the dispute.
• Most lawyers have little training on how to implement and set up strategies and approaches PRE-MEDIATION that will foster early ADR and early settlement often without any need to “go to mediation”.

Bottom line, in my opinion, is that most lawyers DNA, training and mindset works against the probability of early ADR and early resolution of the dispute.

When her Honour states that the issue of when the time is “ripe” to refer a matter to mediaton is a “vexed” one, she regrettably is falling victim to her own legal DNA and is failing to recognise and allow for what those freed from the mental bondage of legal DNA know to be true in almost 99% of disputes – the keys to success and early resolution usually lie outside the bounds and boundaries of what absorbs the minds and focus of lawyers – i.e. the legal issues, the law, the evidence and the forensics of proof and probabilities.  They reside in the minds, principles, values, attitudes and emotions of their clients and very often, when properly identified and understood have nothing at all to do with the law, legal issues, evidence and onus of proof.  But what I am referring to here is often like a foreign language to lawyers and they simply don’t get it. Therefore they bypass it and continue to try and force square pegs into round holes (the round holes being legal fictions that they understand but which is like a foreign language to their clients).

That being so, for myself I lack optimism that the majority of the legal profession will be able to pick up the gauntlet thrown down by her Honour – “to also analyse the financial, motivational or emotional issues that are driving their clients.”

I will be very pleased if I am proved wrong on this.

My current view is based on empirical evidence from the last 10 years or so.

As always, the readers views about this are most welcome on this blog and are guaranteed publication.

All The Best,

Christopher J Whitelaw

Barrister and Mediator

Commercial Disputes Resolution Centre

Lane Cove – 02 9420 8213

Thirdly,

Title: Access to justice costing us more
Author: JULIAN SWALLOW
Source: The Advertiser
Circulation: 176517
Page: 17
Date: 19-Jul-11
INDIVIDUALS and companies must pay up to an additional $1200 to launch legal proceedings under a new state
government measure opponents claim will affect the public’s ability to access justice.
The increase, a State Budget measure introduced on July 1, means companies with more than 20 employees
now pay $3000 to issue a summons through the Supreme Court, while individuals pay $2126 – up from a flat fee
of $1797 last financial year.
It makes South Australia the most expensive state in the country in which to issue a summons, and compares to
$2142 for a company in NSW, $1529.20 in Western Australia, $1050 in Queensland, and a flat fee of $767.40
for both companies and individuals in Victoria.
Australian Lawyers Alliance state president Tony Kerin yesterday expressed concern the fee hikes could affect
people’s ability to access justice.
“The higher the fees, the greater the hurdle that South Australian plaintiffs have to jump through to obtain
justice,” he said.
Law Society President Ralph Bonig said it was the first time the filing fee had been split between individuals and
companies, and was part of a pattern of government-mandated legal fee increases aimed at raising revenue
rather than upgrading court infrastructure.
A spokesman for Acting Attorney-General Patrick Conlon yesterday said the hike was part of steps to ensure a
strong Budget position.

If this new law is passed, just the cost to file a claim in court will be close to $3,000.

Disputes that are channeled early to an alternative dispute resolution specialist can often be totally resolved and disposed of for under $5000.

Based on this stark comparison, shouldn’t everyone be focused on how to maximize the use of ADR in the justice system?

Christopher Whitelaw

Barrister and Mediator

In my last post (Part 5) I addressed Questions (a), (b) and (c) below.

a. How long does this take?

b. What does the “ADR protocol” for tackling the dispute include?

c. What is in the ADR toolbox that makes a successful outcome a high probability?

In Part 6 I will address the following question -

WHAT DOES IT ALL COST?

The best way to answer this is to put up two entirely different systems, side by side, and compare them.

The first system is the conventional system. The conventional system is the one that is most prevalent out there in the market and the one that most people engaged in a dispute seeking dispute resolution assistance will encounter.

The second system is the alternative and fairer system, which is the one I adopt and recommend as the preferred system. Why the preferred system? Because I have no doubt at all that my system is far more equitable and reflects what most potential clients want.

This begs another question – If my system is more equitable and is what the client really wants, then why isn’t it the conventional and prevalent system?

The answer can be broken into a number of parts -

1. Lawyers dominate a huge section of the “market” for these services. They dominate it because a great number of them have become qualified as mediators (and they tend to refer to themselves as “mediator”, rather than an expert is alternative dispute resolution strategies and methodologies) and they market themselves as mediators in a way that nicely dovetails with the mainstream litigation model for dealing with disputes. They tend not to market ADR services in a way that totally distances and differentiates those services from mainstream litigation. They market “mediation” services in tandem with “litigation” services. This is because most lawyers take the view that you first need to litigate with the opponent to demonstrate your client’s superior strength BEFORE going to mediation, so that they can try to leverage that demonstration of superior strength to bargain for a better negotiated outcome at mediation. People who represent themselves as ADR specialists in the market don’t usually adopt that approach, as they know from experience that many disputes can be effectively resolved, and resolved more quickly and more cheaply, by NOT focusing on the law, legal issues and the strengths and weaknesses of each party’s evidence to support their legal causes of action. They know that in the majority of cases the parties can find their own good reasons, reasons that make good sense to them, to resolve their disputes without any need to file legal claims and defenses in court.

2. Lawyers are wedded to a time based method to charge for their services. Their preference is the charge by the hour or by the half day or full day of their involvement. Lawyer mediators apply this same method to the mediation process. However, there is one key point of difference. In the litigation process, the losing party is usually ordered to pay the costs of the winner. When parties elect to or are sent to mediation by court order, the parties share the cost of the mediation process in equal parts. Nevertheless, it is an unwelcome added cost burden if mediation fails to resolve the dispute and the parties have to return to the litigation process to achieve finality.  In an average sort of case the total cost of the mediation process can easily be $5000 to $20,000 (or more), and so for those with tight budgets it is a painful pill to swallow to have to fork out $2,500 to $10,000 for no apparent gain or benefit.

3. Mediators engaged by lawyers acting the the parties in the dispute will require their fees to be paid irrespective of the outcome of the mediation.

4. Lawyers acting for parties to the dispute will require their fees to be paid irrespective of the outcome of a mediation.

This is the “conventional system”.

In the conventional system, mediation is simply seen as a pit-stop on the way to the final destination – the court hearing. If the dispute is resolved at mediation, then the parties avoid the court hearing; if it is not successful then they make final preparation for war and go to the hearing.

In the conventional system, lawyers and mediators make  hay all the way along the continuum from the taking of initial instructions until final resolution of the dispute either via mediation or via a court hearing.

In the conventional system, the client pays for everything, win or lose, along the entire continuum of legal and mediation services.

The financial burden can be considerable, hugely stressful and, in some cases, totally devastating.

If, at any point, the client runs short of or out of money, the services are stopped, and if the client is not able to remedy the situation fast enough, the client is left abandoned and at the mercy of an opponent that has deeper pockets.

How is the alternative system fairer?

It adopts an entirely different approach to the conventional system.

Here are the mains elements of it -

• It first focuses on properly and fully understanding the nature and background of the dispute and those involved in it;
• It moves quickly to bringing the parties (and their lawyers if they have engaged lawyers) together in a collaborate setting to tone down the dispute and avoid its further escalation;
• It then seeks to identify the best approach and best strategies to apply to the dispute to permit quicker resolution and finality, without large expense, and with all effort made to preserve prior beneficial relationships rather than destroy them;
• It puts center stage the importance of each party making an open and genuine commitment to work together, with the assistance of the ADR specialist, and with the assistance of their lawyers (if they are legally represented) to identify possibilities and options for final resolution of the dispute that they can live with, that will endure and that will not close the door on the parties continuing to do business together in the future;
• It focuses on commercial realities and commercial interests and on the issues identified by each party as being important to them rather than on the law, legal causes of action and who has the stronger case to take to court.

In this environment, and in this set of circumstances, the alternative way is to align with the parties genuine commitment to find their own solution without resort to litigation and support it by declining to charge a fee for service unless and until a successful outcome is achieved.

In my experience of working this way, when you combine the elements of the parties own genuine commitment to the process with the skills and ability of a a highly trained ADR specialist, a good outcome is almost inevitable, and in the small number of cases where a good outcome is not achieved I am more than happy to sacrifice my fee to a good cause.

With this approach, everyone feels that they are being treated equally, and we either all win together, or we finish up knowing that we gave it our best shot but that some of the issues were irreconcilable and will need to be determined by an external umpire.

Any fear by an ADR practitioner or legal practitioner that to adopt this alternative model would lead to financial ruin for them should be dispelled as unfounded and misconceived.

The focus should rather be on creating the right set of  circumstances to manage and resolve the dispute, the total genuine commitment of all the players to the process and on the skills of the ADR practitioner to facilitate and manage the process.

As usual, where the skilled practitioner is willing to accept the risk of “no win no fee” terms of engagement, where success is achieved the remuneration then payable by the parties to the practitioner should be considerably higher than the practitioner’s usual fee rates when charging in the normal manner.

An ADR practice constructed along these lines will survive and thrive even if there is the occasional dispute where successful resolution fails to eventuate.

In PART 7 I will address the interesting issue of how LATERAL THINKING is a key aspect of ADR methodology to resolve disputes and contrast this with the LINEAR approach that is all too common in the Litigation model.

Until then,
Christopher Whitelaw

Barrister and Mediator

The Dispute Management Centre

02 94208213

cwhitelaw@chriswhitelaw.com.au

a. How long does this take?

b. What does the “ADR protocol” for tackling the dispute include?

c. What is in the ADR toolbox that makes a successful outcome a high probability?

d. What does it all cost?

e. What if it doesn’t work?

f. Can time and money be wasted, and if so, why isn’t it better to just file in court first and then tall about ADR? “

So, let me use Part 5 to address these relevant questions.

How long does it take?

That depends on the nature and circumstances of each case. If parties to an emerging dispute (i.e. it is heading towards being a dispute, but is not yet being labeled a dispute) bring it to a skilled ADR expert the whole focus of the ADR expert will be on how to manage the situation so that it never becomes a dispute.If it already is a dispute then the whole focus will be on avoiding escalation and getting the parties together so that options for early resolution can be explored. If the parties have been stuck in dispute for some time and have already fallen into litigation the focus will be on revealing to them better alternatives to continuing in litigation and going to a final hearing.

No matter what the status of dispute or emerging dispute is, if the parties choose to commit themselves to ADR rather than Litigation, a management plan for dealing with it can be developed fairly fast if the parties give their full cooperation. With full cooperation the whole process should normally be completed in 4-6 weeks.

What is included in the ADR protocol for dealing with the dispute?

The following stages are normally involved -

1. Obtaining sufficient information and material to properly understand the dispute and each party’s background and attitude to it. What caused the dispute and how has it evolved up to this moment?

2. Working out who needs to be involved to achieve the quickest resolution of the conflict and by what methods and strategies?

3. Obtaining access to relevant documents.

4. Sending out preliminary questionnaires to each party to gather in more vital information to help the ADR expert work out the best way to approach and structure the resolution process.

5.  Preliminary meeting/conference with each party.

6. Considering and recommending the appropriate use or application of ADR options including negotiation, conciliation, neutral evaluation, neutral expert determination, mediation and arbitration; and the possibility of hybrid processes.

7.  Establishing dates for any of these processes suitable to both parties and any facilitator (neutral, conciliator, expert, mediator or arbitrator)

8. Establishing all the preliminary things to occur and be done before any ADR event (e.g. neutral evaluation, expert determination, conciliation, mediation or arbitration)

9. Scheduling the ADR event.

10.  Implementing any pre-event education or awareness raising initiatives.

As you can see, these 10 steps have nothing at all to do with the legal issues that might exist in the case or with evidence or with onus of proof etc. Those are the tools of lawyers who are in control of the litigation process. The ADR approach focuses on the parties attitudes to the dispute and its history and on their reasons for wanting to resolve it without a court hearing The focus is not on the law and legal issues but on commercial realities and commercial reasons to end the dispute and lateral thinking to come up with all possible options for consideration. The process is not driven by a desire to win or punish the other party. It is not driven by a desire to seek justice or get retribution. It is driven by a mutual desire to exit the dispute on terms that each party can live with so that they can get it behind them and get back to normality. It is also driven by a mutual desire to preserve relationships rather than destroy them.

I will address the remaining questions in the next installment – Part 6.

All the best,

Christopher Whitelaw

Barrister and Mediator

The most powerful potential of ADR as a mindset and set of strategies lies in its pre-litigation use.

This is a potential that is yet to be fully realised in most countries where ADR is now a well-accepted “tool” within the legal justice system. This is because, as I have stated earlier, most of the focus has been on utilising ADR after the dispute has manoeuvred into court rather than before the dispute has been converted into “litigation”.

As soon as a dispute become “litigation” it becomes hijacked by the legal mindset and litigation model for resolving disputes via case management and adjudication. This model tends to polarise the parties and limit their thinking and perspectives on the dispute and how to resolve it to legal concepts that tend to focus on who has the stronger or weaker case based on legal principles and measuring sticks (legal issues, evidence and onus of proof etc.)

If, on the other hand, the parties and their representatives were clued up on how to use ADR right from the start (i.e. when a dispute first crystallizes) they might respond is this sequence before even contemplating litigation –

1. Exchange their own Position papers regarding the dispute within an agreed timeframe and do this in an entirely non-confrontational and friendly way;

2. Respond as objectively and non-aggressively as possible to each other’s position statement within the agreed timetable; and with permission to express themselves frankly and without hiding emotions and feelings ignited by the dispute provided that an attempt is made to explain those emotions and feelings to help the other party understand them;

3. Each party then draws up a set of possible options for settlement and this is exchanged within the agreed timetable;

4. If this does not lead to resolution by an agreed date, the next step is to engage a expert in ADR (a qualified ADR practitioner). This ADR facilitator will most likely be an accredited mediator but need not be a lawyer unless the parties feel that some relevant legal expertise is necessary;

5. The ADR specialist then draws up a blueprint to manage the dispute and sends that off to the parties for comment and eventual approval;

6. A dispute resolution retainer agreement is then drawn up and submitted to the parties for approval;

7. Once the retainer is signed the ADR specialist commences the protocol that the parties have agreed to and facilitates settlement of the dispute.

You may have some questions to ask, such as -

a. How long does this take?

b. What does the “ADR protocol” for tackling the dispute include? What is in the ADR toolbox that makes a successful outcome a high probability?

c. What does it all cost?

d. What if it doesn’t work?

e. Can time and money be wasted, and if so, why isn’t it better to just file in court first and then tall about ADR?

Good questions and I will tackle each one of them in my next post.

Cheers,

Christopher Whitelaw

Commercial Disputes Resolver

02 94208213

• Negotiation
• Conciliation
• Neutral Non Binding Opinion
• Neutral Expert Determination (binding or non -binding)
• Mediation
• Limited and restricted forms of arbitration

Commercial Arbitration has its own existence outside of the Court Rules via various Commercial Arbitration Acts (national and international). Parties can opt into these dispute resolution regimes when they are making their contract with each other by including the appropriate commercial arbitration clauses that dovetail with the applicable arbitration act.

However, the every day reality is that the vast majority of of disputes that enter into the litigation stream for dispute resolution only ever see one type of “ADR” along the continuum of the litigation path – and that is Mediation. With the Litigation Paradigm for dispute resolution Mediation has become a well recognized and entrenched pit-stop along the way to a final hearing. And by the time most parties reach this pit stop they have already racked up a great deal of confrontation and legal costs that must be handled at the mediation. As a result the mediation process becomes more complex and the prospects of success more clouded and problematic. There is “baggage” and the baggage must be dealt with.

I wish to suggest here that the vast majority of commercial disputes are amenable to and suitable for “Early Pre-Litigation ADR” and much could be done, right now, to create and foster an environment and mindset that favoured early pre-litigation ADR so that ADR well and truly become the first port of call for commercial interests that fall into dispute and Litigation well and truly becomes the last resort.

The recent reforms in New South Wales to the Civil Procedure Act and Rules and the reforms still being considered by Federal Parliament, aimed at bring more focus and emphasis on early ADR is a step in the right direction, but it still fails to focus on ADR and its multiple strategies for dispute resolution in a way that totally disengages it from the litigation system. All the reforms do is set up a new protocol at the gateway into the courts to allow a higher level of monitoring within the court controlled case management system to force the parties and their representatives to demonstrate to a higher level of transparency that they have made a reasonable attempts to resolve the dispute via ADR. They will only be allowed to proceed further down the litigation track and make use of the taxpayer funded court resources if they meet the test for “reasonable attempt” to resolve the dispute via ADR.

There is much more that can be done to enable and allow ADR to fulfill its real potential in giving parties more access to justice with less effort and lesser expense.

I will launch into what this is in my next post – in ADR and Access to Justice Part 4.

Christopher J Whitelaw

Barrister and Mediator

02 94208213

Just recently, the Chief Justice of the Canadian Supreme Court, Beverley McLachlin, stated at an Access to Justice symposium stated that “Access to Justice is a fundamental right, not an accessory.” She also said, “Access to Justice implies a responsive decision by the judiciary within a reasonable time and cost”, and “People expect they can turn to the legal system for a resolution. They are ‘hard-wired for justice’. Access to Justice affirms the rule of law, and promotes social stability.”

She then went on to point out that in the Canadian Legal System a 2-3 day civil trial cost around $60,000 to each party to the action. That is on par with Australia.

Most people cannot afford, or easily afford, that sort of money to get the justice they are seeking.

The key point I want to make in Part 2 is that in the current debate about access to justice and the cost of getting justice from the legal system, Alternative Dispute Resolution (ADR) is mostly confined to be discussed and considered as a mere adjunct or component in the “legal system” that exists to dispense “justice” in civil/commercial disputes.

This produces an adverse outcome – it confines ADR, and its role and potential benefits, to being considered with the legal paradigm of access to justice. If you care to review many of my earlier posts on this blog you will quickly discern that I am forcefully and consistently putting forward the view that the best and highest potential for the use of ADR in civil disputes lies in making use of its tools and resources OUTSIDE of the legal system and the legal paradigm for access to justice and dispute resolution.

In the model I am advocating “ADR” is only able to fulfill its highest potential, as an integral part of the “justice system”, if the parties and their representatives approach it and make use of it through the portal of its own paradigm and set of principles to resolve disputes, and not as a step along the way to pursuing justice by seeking a ‘responsive decision by the judiciary within a reasonable time and cost.’

The ADR paradigm for achieving a just outcome of a dispute is very different to the Legal or Litigation paradigm for resolving disputes. I canvass these differences in many of my earlier blog posts.

The “Access to Justice” debate should, in my view, be considering how to fully harness the power and potential of ADR  BEFORE any access to justice via the judiciary or tribunals. I am talking about pre-litigation use of ADR. If they did this, then, in my view, many of the vexed problems for access to justice would disappear or be substantially minimized.

In my submission, the current focus on ADR is heavily slanted towards the use of ADR post commencement of litigation rather than on its use before litigation is commenced. It should be the other way around.

I will delve more into this in my next post – “ADR and Access to Justice Part 3″.

Christopher Whitelaw

Commercial Disputes Resolver

Lane Cove Dispute Resolution Centre

02 -94208213

Over the last decade there has been a repetitive catch cry to Federal and State Governments that access to justice is being severely eroded by a lack of funding for Legal Aid with the consequence that legal aid for civil dispute matters is close to being non-existent. There has been a further catch cry that Lawyers have been deserting Legal Aid work in droves because the Legal Aid rates of pay are so bad these days that it is no longer just a complaint that it pays the law firm too little in profit but that it fails to even allow them to break even on providing the service.

The third plank in the debate has been the way these governments, who refuse to adequately fund the legal aid system, lend their support to an increase of pro bono services in the very areas where they are said to be shirking their responsibilities. The accusation is that they now rely on lawyers pro bono services to fill the gaps in the justice system that the governments refuse to throw more money at. The picture looks even worse when you find out that Governments dole out their lucrative legal work to the private legal sector in a way that favours those who can show they are doing more pro bono work. All this does not put these governments in a very good light.

But these are matters that the average citizen knows very little about and hence it is easy for government to convince their electorates that they are being generous in  the funding they already provide to the legal justice system and that the extra money being called for would be better spent elsewhere to the benefit of the taxpayer. To throw more money into Legal Aid would just be to better feather the nests of greedy lawyers.

But nowhere in this debate do you hear much discussion about how ADR could be used in more effective ways to remedy the absence of governing funding for civil disputes.  So I am going to throw my hat into this arena and suggest that a new model for ADR service delivery could achieve a win/win outcome for all concerned – the government, the citizen involved in a dispute, the lawyer and the ADR practitioner.

Interested?

Well stay tuned for my next post.

Christopher Whitelaw

Commercial Disputes Resolver

Lane Cove Disputes Resolution Centre

02 94208213

The new law will ensure that, as far as possible, parties take “genuine steps” to resolve civil disputes before proceedings are commenced in the Federal Court or the Federal Magistrates Court.

When commencing proceedings in court, parties will be required to file a statement saying what steps they have taken to resolve their dispute or, if they have not taken any steps, the reasons why. The court can take into account the failure to take steps when exercising its existing case management directions and costs powers.

This new approach will bring more focus on practitioners using ALTERNATIVE DISPUTE RESOLUTION STRATEGIES (ADR) before they bring the case into court. This means the possible use of -

• Negotiation
• Neutral Expert Appraisal or Determination
• Conciliation
• Mediation
• Arbitration

This, in turn, highlights the increasing need for legal practitioners to become more conversant with ADR philosophy and methodology and more skilled in making effective use of ADR strategies.

Now, New South Wales, seems to have beaten the Federal Government to the gate by just recently passing amendments to the Civil Procedure Act by its assent to the Courts and Crimes Legislation Further Amendment Act 2010.

These new laws enact new pre-litigation requirements.

The major changes are these -

• Parties in a civil dispute must taken “reasonable steps” (not “genuine steps” as in the Federal Bill), to resolve the dispute, or narrow the issues, before they file in court. This means that they must pay regard to the client’s situation, the nature of the dispute (e.g. value of the claim and complexity of the issues) and any applicable pre-litigation protocol to resolve the dispute before commencing litigation.
• “Reasonable steps” include notification to the other party of the issues, exchanging information and documents critical to the resolution of the dispute, and considering negotiation or alternative dispute resolution (ADR);
• Lawyers must inform their clients about the new law and advise on ADR;
• Parties must not unreasonably refuse to participate in genuine and reasonable negotiations or ADR;
• If proceedings are commenced in court the plaintiff must file a dispute resolution statement identifying what steps have been taken to avoid litigation;
• Failure to comply can have implications for costs in any subsequent litigation.

What will be interesting to keep an eye on is what protocols evolve to satisfy these new statutory requirements and what practitioners and the court work out to be “reasonable steps” and how the courts deal with non-compliance.

It could be a new era for ADR and ADR specialists – but time will tell.

Christopher Whitelaw

Dispute Resolution Specialist

Lane Cove Dispute Resolution Centre

02 94208213