There is a Civil Dispute Resolution Bill currently before Federal Parliament in the House of Reps. It reflects strongly the current federal government perspective that more needs to be done to foster early out of court dispute resolution. Its proposed new laws strongly support the line of thinking that I have been putting forth on this blog.

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

Some of you may be aware that the 36th Australian Legal Convention has just finished in Perth, WA.  A number of keynote speeches was given by the Federal Attorney General the Hon. Robert McClelland.

When speaking about “Access to Justice” the AG said this “The reality is that there are many situations where courts are the last place people will get the outcome they are looking for to resolve their issues. I think there is an increasing tendency for lawyers to acknowledge that the best thing they can do for their clients is keep them out of court. Often a full flow court case will be completely disproportionate to the issues in dispute.”

Mr. McClelland made mention of the Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008 that is before Parliament but is not yet enacted into law. He expressed his hope that the bills will be passed into law by the end of 2009. The Bills contain important case management reforms to improve the operation of the Federal Court. He said that “the centre-piece of this is a new overarching obligation to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.” The case management reforms will amongst other things permit the court to refer questions arising in proceedings to a referee for inquiry and report. The AG said “This is an important reform that will provide greater flexibility in obtaining expert assistance and will enable litigation to be managed more effectively.”

The AG appointed an Access to Justice Taskforce  to undertake a comprehensive examination of the federal civil justice system with a view to developing a more strategic approach to access to justice issues.

He made a number of key points that are relevance to considering a wider and more effective use of alternative dispute resolution mechanisms to resolve disputes -

• The cost of legal services is a major barrier to people accessing the justice system.
• People often have a hard time understanding “legal events”.
• The public perception that engaging a lawyer is too costly will be difficult to shift when many lawyers remain wedded to a time sheet costing that is based on time rather than outcomes. This system often rewards inefficiency over value.
• What is needed is a stronger emphasis on early intervention and dispute prevention.

He said “it is proposed that a triage process be developed where individual problems are assessed for the most appropriate means for dispute resolution. Every citizen has a right to their day in court, but we as practitioners have a responsibility to ensure that step is the last, not first, recourse. Where there are more cost effective and expeditious ways of resolving disputes these should be specifically pointed out.”

I have highlighted these chief points made by the Attorney General as they tie in very well with the points I have been highlighting myself since launching this blog about 6 weeks ago.

Indeed this is the very reason I launched this blog and am seeking to make it a convenient forum for a national discussion about HOW to make better use of ADR (alternative dispute resolution) skills, strategies and methodologies to improve the overall functioning of the civil justice system and to improve access to justice via ways that do not place the chief focus on the law and on legal classifications that most people just cannot relate to and which often steers them away from what are the REAL ISSUES for them.

Christopher Whitelaw