In late 2010 The Chief Judge in Equity in the New South Wales Supreme Court, Justice Bergin, made these remarks in her opening statement at the NSW Bar Association’s ADR Workshop.
“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,
