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

You may have caught the news a couple of months ago that the NSW government launched a discussion paper that proposing some reforms to how it managed the ADR system in that State. The discussion paper proposed amongst other things that lawyers be bound by statute to advise their clients about ADR and the establishment of an ADR directorate.  It said that the growth of the non-adversarial system, including ADR, was lacking strategic coordination and ADR services were being distributed on an “ad hoc” and piecemeal basis. It also said “There is currently no comprehensive and clear picture available of the full range of ADR suppliers.”

These proposals follow ADR reforms being considered in Victoria after a report by the Victorian Law Reform Commission was released in May 2008. The Commission recommended that more disputes be resolved before trial. Victoria is currently leading the way with such reforms and a much higher percentage of disputes are being submitted to ADR and often at a very early stage.

The NSW government, in its discussion paper, is encouraging collaborative law be applied to civil dispute cases and that a single Sydney International Arbitration Centre be established. It wants to enact some guiding principles for civil disputes and it is looking at enacting laws that will allow adverse cost orders to be made where these guiding principles are not adhered to by parties to a dispute.

What are your thoughts on this? We now have the National Mediator Accreditation System in place since 2009. What further reforms are needed?

Your comments and insights would be much appreciated.

Christopher Whitelaw