Lawyers must front up to the potential of Alternative Dispute Resolution in Australia, writes Briana Everett
The message has been clear for a long time: Alternative dispute resolution (ADR) processes are a vital tool for the legal profession and their value as an alternative to costly litigation is obvious. Yet according to the latest report released by the National Alternative Dispute Resolution Advisory Council (NADRAC), ADR processes are still significantly underutilised.
So why, after many years of hearing the merits of ADR processes, are lawyers still not heeding the call to deploy them? According to NADRAC, one of the barriers is simply the lack of knowledge and understanding of ADR amongst the profession.
The NADRAC report, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction, was released in November 2009 after the Federal Attorney-General Robert McClelland asked NADRAC to identify key strategies to promote the greater use of ADR.
Given the report's key ambitions - those being a desire by the Federal Government to promote and raise awareness on the value of ADR within the civil justice system - the findings of the report raise some fundamental concerns: do lawyers need to overhaul their way of thinking and develop a better understanding of ADR? Or is this issue far more problematic in that there is an engrained resistance to ADR amongst some members of the profession?
A number of industry professionals think exactly that and highlight such reasons as why ADR has so far failed to reach its potential in Australia. There are some things in the legal profession, they say, that simply must change.
The ADR identity crisis
The problem of ADR take-up by lawyers may initially come down to perception. According to barrister and mediator Christopher Whitelaw, when most lawyers think of ADR - and mediation in particular - many will over-simplify the process, and its significance.
"People are really talking about how to settle a dispute using mediation, where as dispute resolution is not about how to get a settlement. It's about resolving disputes in a way that gets the problem to go away, but allows the people to go ahead...into the future," Whitelaw explains.
Whitelaw, like NADRAC, is concerned that most (but not all) lawyers have a limited understanding of ADR's breadth and scope and believes a lot of lawyers have an over-simplified view of what ADR actually involves and therefore, when attempting to undertake ADR processes, simply deliver a cut-down version of them.
Similarly, mediator, arbitrator and former litigation lawyer Steve Lancken says that when thinking about mediation, lawyers tend to get swept up in concerns that their clients will be coerced into making bad deals. He emphasises the need to move away from the idea that mediation is about forcing people to settle.
"Mediation has to rearticulate the business we're in. We're not in the business of settlement. We're in the business of people making good decisions and that involves having open and frank discussions about things," Lancken says.
Transform the perception
Given the adversarial nature of the legal profession and the way lawyers are taught to approach disputes, it is no surprise the profession still struggles to not only embrace ADR, but also understand it.
The key to easing such a struggle, believe ADR industry members, is to target the mindset of lawyers. "The key word is the mindset," Whitelaw says. "It's the fundamental thing [for] transformation [to] take place. People who practice true ADR have changed their mindset. People who practice this [simplified model] have not truly changed their mindset. They are simply fitting a dumbed-down version of ADR into their existing paradigm."
Whitelaw says with a change in approach and by targeting lawyers to ensure they gain a better understanding of what constitutes true ADR, the impact of ADR will improve significantly, leading to better outcomes for disputing parties.
And by taking a different approach, a higher standard of service to clients can be achieved in a climate where, as Lancken explains, clients are "clamouring for an approach that can help [them] solve problems without huge costs".
But Lancken warns this higher standard is not achievable until lawyers start to change their perception of ADR and start viewing courts as just one part of the broader civil justice system.
"People are looking for a different way of delivering legal services that looks at solving the problem, rather than winning the case, and I think that's a challenge for lawyers," he says.
Natasha Mann, the director of the ADR Directorate and Community Justice Centres for the NSW Department of Justice and Attorney-General, remarks that lawyers are trained to frame a problem in terms of legal rights and, as a result, they are more comfortable with litigation.
"I think [lawyers] are asking the wrong question," she says. "They're asking if there is any reason why the dispute is suitable for ADR, rather than asking whether there's a reason why not."
In contrast, while admitting that lawyers do not necessarily engage in ADR in the best way all the time, litigator and partner at Baker & McKenzie, Julieanne Cox, does not see the same reluctance amongst the profession to embrace ADR that both Lancken and Whitelaw espouse. She believes lawyers' minds are already well and truly set towards ADR.
"Our objective is to get the best result for our client through the appropriate process...If there were any practitioners who were anti-mediation, they are long since gone," Cox says.
"You have a toolbox available to you of things that you can do to try and resolve a problem. One is no more valuable than the other. It's what's appropriate."
Likewise, Freehills partner and litigator Bronwyn Lincoln is not convinced lawyers are resistant to ADR and explains that mediation is already well-established as a part of most litigation processes and that lawyers who are regularly involved in litigation are compelled to take part in ADR and do so.
Education, education, education
As Lancken observes, many lawyers do not have the skill sets required to properly utilise ADR processes. As a result, a greater emphasis by government and the industry alike is being placed on ADR education and training.
NADRAC is calling for better training for legal practitioners and says this should start at university level.
Among the 39 recommendations offered via their recent report, NADRAC suggests law schools may need to consider changing their curricula, noting that only a few law schools in Australia offer significant education about ADR as part of their core curricula. NADRAC also observes that too often, ADR is incorporated into litigation subjects as a short component only. Instead, NADRAC suggests that ADR be elevated from a "mere adjunct to civil procedure or litigation subjects to being taught as a full course" and recommends a compulsory ADR course as a core subject and prerequisite for admission.
Lincoln agrees that better education of legal practitioners is necessary. "Education is probably the biggest thing. Teaching clients and encouraging lawyers to think of mediation as part of the process rather than something that's stop and start," she says.
And in terms of training, the most important skill lawyers need to develop, according to Lancken, is how to manage conflict - as opposed to representing someone.
"It's not something that lawyers do naturally because usually they're protagonists in conflict and their job is to represent one of their clients in a conflict," he says.
Patience is also key, according to Cox and Lancken, as well as excellent communication skills - which Lancken says includes listening, as well as talking.
"Mediators need to be particularly patient in the way they support people to make decisions, because a big part of the job is supporting people's decision-making processes," he says.
At the end of the day, as Lincoln says, lawyers will learn best by simply practising with ADR and building their experience.