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

As many of you will now know the Federal Attorney General recently introduced the Civil Dispute Resolution Bill 2010. If made into law the Act will require prospective litigants to take “genuine steps” to resolve their legal disputes before they will permitted through the gates by the case managing judge to continue their litigation war. They will need to detail what steps they have genuinely taken to resolve their dispute out of court and without resort to litigation.

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

This is my last installment on what I learned listening to David Richbell at an advanced mediation workshop in Sydney.

David said that the mediator needs to keep asking the question “Why is there a gap that is blocking the parties getting to Yes and Settlement of the dispute”? The Mediator needs to keep exploring what each party needs to achieve to close the gap and open the door to settlement.

If the Mediator does not work out what each party needs then it is not possible for him to go to work to close the gap.

If both parties have come to the mediation with a genuine desire to do a deal then the mediator’s task is to flush out what has to happen to get each party to Yes on a deal each can live with. The mediator’s job is to coach each party towards Yes by identifying and dispelling misconceptions and invalid assumptions that are getting in the  way of forward movement towards a deal.

The Mediator can apply his skills to “re-frame” words used in any offer or counter offer to make it easier to extract a response that moves the a bit closer.

The Mediator can use techniques like hypotheticals and reality testing to create impetus when a party is blocked or stuck. She can assist in constructing offers that have a better chance of success.

The mantra to keep putting in each party’s mind is “What deal can you live with?” and contrasting that with the litigation alternative with all its uncertainties and risks.

In a future blog post I will be putting up a whole list of MEDIATOR CHALLENGES that have been put together by MATA (Mediation and Training Alternatives) and invite you to ADD TO THIS LIST drawing on your own experiences OR to post a COMMENT outlining any personal experience you have had with one of these Challenges (or some challenge not included in the List) and how you personally dealt with it.

Cheers

Christopher Whitelaw