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Lawyer behaviour addressed in new ADR report

Lawyer behaviour addressed in new ADR report

Lawyers' behaviour in alternative dispute resolution settings has been squarely addressed in a new report welcomed by the country’s first legal officer.

LAWYERS’ behaviour in alternative dispute resolution settings has been squarely addressed in a new report welcomed by the country’s first legal officer.

The report from the National Alternative Dispute Resolution Advisory Council (NADRAC) advises the Government on improving the integrity of ADR.

Lawyers need better training and legal professional bodies need to amend their condes of conduct to better define the standard for lawyers participating in ADR, the report said.

NADRAC had noted in a 2009 report that “where concerns have been raised about the conduct of participants in ADR, they seem most often to be about the conduct of some lawyers”, and things have not changed, the current report suggests.

“Some lawyers are alleged to exhibit undesirable behaviours in ADR processes, such as tightly controlling the communication processes, limiting the disputants’ direct participation and unduly focussing on legal argument and issues,” the report said.

Lawyers’ behaviour in the ADR setting is sometimes reflecting and promoting an adversarial culture and a lack of understanding of ADR, it said.

The current report recommends better training for lawyers.

“In NADRAC’s view, these behaviours are most effectively addressed through further training and education for legal practitioners and law students,” said the report.

“Further training of lawyers would be desirable to change thinking from a rights-based to an interest-based approach when participating in ADR.”

The report said lawyers need to be reminded to advise clients of available ADR options, their respective benefits and consequences, and that ADR processes, such as mediation, do not determine rights.

It suggests lawyers should advise that, even if the process is required by legislation or an order of a court or tribunal, a resolution cannot be mandated.

Legal professional bodies, too, did not escape attention in the report. Codes of conduct need to be amended to better define standards of lawyers participating in ADR, it said.

“For example, the Law Council of Australia and Law Society of NSW have already issued guidelines for lawyers involved in mediation.

“It is important that the national reform of the legal profession does not omit or minimise the responsibility of lawyer to assist their clients to resolve disputes and maximise their use of ADR.”

Attorney General Robert McClelland commissioned the report to recommend legislative changes to maintain the integrity of ADR in Australia. He today welcomed the report, called Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People.

“We have an evolving culture in Australia of resolving disputes outside of the court system,” McClelland said.

“More and more people are choosing this option. Alternative dispute resolution is becoming an increasingly prominent feature of the way Australians access justice, and it is important to ensure the services that support them are consistent.”

The NADRAC report also discusses issues around about confidentiality, inadmissibility, immunity and conduct obligations of all others involved in alternative dispute resolution.

NADRAC consulted extensively in developing the report through discussions with family law experts and two public consultation processes which resulted in more than 40 submissions.

“NADRAC’s report will encourage greater use of alternative dispute resolution as an effective mechanism to resolve disputes,” said McClelland

NADRAC is an independent non-statutory body that provides policy advice to the Attorney General on ways of resolving or managing disputes without the need for judicial determination.

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