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Lawyers flailing on ADR

Lawyers flailing on ADR

Lawyers are largely unaware of the process of dispute resolution, and are foiling appropriate resolution of cases as they push them through the court system.

LAWYERS are largely unaware of the process of dispute resolution, and are foiling appropriate resolution of cases as they push them through the court system.

A new report launched this week by the federal Attorney General Robert McClelland has found that alternative dispute resolution remains significantly under-utilised and that a key barrier is a lack of understanding and knowledge among the legal profession, litigants and the general public.

The report, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction, makes 39 recommendations aimed at improving the ADR system.

The report’s finding demonstrate that people should not expect “that there is only one just result of every dispute, which only the court can deliver”, said McClelland on Thursday.

McClelland said he plans to urge the various legal professional bodies, including the Law Council of Australia and State and Territory legal bodies, that admission, practising certificates and continuing legal education requirements for lawyers include dispute resolution skills and knowledge.

Lawyers will have to inform their clients about the requirement to take genuine steps to resolve a dispute before commencing court or tribunal proceedings, McClelland said.

Lawyers will have to tell their clients about the likely timeframe of any legal proceedings, the likely costs to them and the other party for which the client may be liable if unsuccessful, and the advantages of resolving their dispute voluntarily, if possible, and the benefits of ADR.

Lawyers will also have to advise their clients about any private or community based services that may help dispute resolution.

As well as an overhaul of how well lawyers are briefed on ADR, McClelland recommended a legislative response requiring prospective litigants to have taken genuine steps to resolve their disputes before they go to court.

They will also have had to considered the services available outside court that may assist them to resolve their disputes, and understand the various ADR processes.

Litigants will also have to have obtained advice about estimated costs, cost exposures and timeframes for the proposed proceedings, McClelland said.

He said debate had developed within the National Alternative Dispute Resolution Advisory Council (NADRAC), which published the report, as to whether such legislation should be generally used or contained within specific legislation tailored to the relevant court of tribunal.

McClelland said the government would consult on which action to take and was not yet decided. But, he said, in that respect “the report noted the importance of national consistency”.

New legislation would provide for “pre- and post-filing requirements requiring disputants, legal representatives, courts and tribunals to take genuine steps to resolve disputes, using ADR whenever appropriate”.

McClelland said that if done correctly, new legislation could help avoid some of the “ritualistic procedures that unnecessarily add to costs and delay access to justice rather than assist the quick, fair and effective resolution of disputes”.

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