A continuing culture in which lawyers and their clients don't want to appear "weak" by adopting alternative dispute resolution (ADR) methods is hampering efforts to lessen litigation in Australia, according to a high-profile panel on ADR.
Speaking at an event organised by the NSW Law Society Dispute Resolution Committee and hosted by Baker & McKenzie last night (7 June), panel members - including Federal Attorney-General Robert McClelland, Justice of the Supreme Court Patricia Bergin, Disability and Race Discrimination Commissioner Graeme Innes AM and Salvos Legal managing partner Luke Geary - discussed whether ADR really supports access to justice, or whether its benefits are merely an illusion.
While McClelland spoke of the need to change the adversarial culture which is inherent amongst lawyers and law firms, Geary said there is a continuing perception amongst clients and their lawyers that resorting to mediation, conciliation or arbitration is seen as backing down.
"Clients are concerned that they would look weak if they use ADR," he said.
Justice Bergin agreed and said that although many people have moved beyond the mindset of "having to have their day in court", there remains a certain type of person in which the desire to litigate is extremely difficult to shift.
"There are people who will always want to say, 'see you in court'," she said. "They won't settle. It's an attitudinal thing because of human nature. They will never change."
Despite this, McClelland said he believes the culture within law firms is changing to be more receptive of ADR.
"If we can get lawyers to be ADR advocates ... they might start getting the best outcomes for their clients," he said. "If lawyers stop having to show how tough they are ... then I think we'll be getting somewhere."
Despite McClelland's optimism, Innes raised the ongoing problem of the cost of litigation impeding access to justice for those who are neither very rich nor eligible for legal aid, and panel discussion host Helen Dalley, a journalist with Sky News, questioned why law firms would push clients towards ADR when their economic welfare is often shaped by the fees earned during litigation.
"I have no problem with lawyers charging what they are worth," said McClelland. "All I ask is that when lawyers charge, they make a difference, that they add value to their client's case. I think that culture is changing."
It was generally agreed amongst panel members that the success or otherwise of ADR and how much it is being used has not yet been monitored or measured.
However, according to Justice Bergin, one has to look no further than the Bar, and the growing anecdotal evidence suggesting that many barristers - both junior and senior - are short of work, to see that ADR is making its mark.
"If you ask the Bar [whether ADR is being adopted], the answer is yes," she said. "There's flatness, quietness. The work at the Bar is changing. Barristers are working out how to settle, rather than honing their skills on their feet."