I recently attended an all day ADR (Alternative Dispute Resolution) event hosted by the NSW Bar Association. The event was attended by many of the luminaries of the Bar who practice in ADR and other luminaries in the ADR industry as well as over a hundred other barristers who have become accredited mediators and wanted to hear about “the future of ADR in Australia”, “international developments in mediation”, “mediation and the courts” and more. The keynote address was given by the Federal Attorney General, Nicola Roxon MP.
What did I learn?
Quite a bit, but here is a potted summary -
- According to our Attorney General “Australia still lacks a true culture of ADR”. Our lawyers and our citizens still remain too aligned with the adversarial litigation culture;
- We all need to do our best to change this to a new culture that supports the use of ADR as the primary means of addressing disputes in our community (including in our business community) so that people everywhere can be better informed of the alternatives to litigation so that they can make an informed decision as to how they wish their disputes managed and resolved.
- The AG strongly implied that the public is not presently being properly informed of the choices open to them.
- She said that the legal community must play a key role in this change of culture. She strongly implied that they were not yet fulfilling this key role and urged lawyers to do more to support the change of culture.
- She said that legal services and litigation are too expensive for too many people, making justice unaffordable.
- She said that there needs to be a shift away from the adversarial approach.
- She drew attention to “Your guide to ADR” recently published by the National ADR Advisory Committee (NADRAC) and urged everyone in the legal profession to read it and adopt the guidance provided.
- She said that the Courts should not be the first port of call for disputes.
- ADR helps create a more level playing field as the courts tend to favour those with more money to fund their litigious strategies to gain an advantage over those with less money.
- She stated that lawyers have a duty to act in the best interests of their clients and that properly informing them of the ADR choice and alternative strategies is part of this duty.
- She said that lawyers must to do their best to keep disputes away from the court wherever possible, leaving the courts to handle only the most complex or intractable disputes or ones that truly needed the benefit of a legal precedent that can only be delivered by a court.
- She said that the public relies on lawyers to fully reveal the alternative dispute management/resolution options to them.
- Lawyers who are not fully versed in ADR culture may not be able to do this very well.
- She remarked that not all lawyers were “fully wed to ADR” so that they may not be able to effectively communicate the alternative options to their clients and hence fail in their duty to facilitate a real choice between ADR and Litigation.
CONCLUSIONS DRAW FROM WHAT THE ATTORNEY GENERAL SAID
1. ADR should always be the first choice of option for most disputes
2. Lawyers have a duty to explain this to their clients
3. Many lawyers are not fulfilling this duty
4. Lawyers need to support a shift in culture away from adversarial methods to resolve disputes via the courts to the ADR culture that tries to help those in dispute effectively manage and resolve disputes without the need to litigate
5. Many lawyers are not suited or able to properly present the alternative to their clients. In essence, they have a rather obvious conflict of interest as they are clearly wedded more to the litigious process for resolving disputes than the ADR process.
I will provide more insights from this one day conference and other developments happening “out there” in future posts.
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