The evolution of dispute resolution
It’s no secret that dispute resolution without courts is gaining in popularity, writes Alison Shaw.
More and more people are seeing the benefit of mediation and arbitration and it’s not just about people being fed up with paying exorbitant legal fees to become embroiled in a court system that moves only marginally faster than coastal erosion. The family law cases backlog is a case in point.
There is something else that is driving the move to dispute resolution without courts...
Mediation firms have certainly been very active in promoting their services, as have some traditional law firms that see the value in mediation. I remain of the view that dispute resolution without courts will become the desired processes for enabling people and organisations to resolve their differences.
My theory is that this shift in mindset has a lot to do with the evolution of society.
Some may balk at the suggestion that society has become more mature, more ‘civil’ in nature when reality television shows focused around people being as nasty to one another as possible to win some or another prize, remain so popular.
I accept too that we’ve never been more narcissistic as a society. That said though, there are many other indications that we are evolving to a more
educated and therefore conscientious society.
Want evidence? Look at how we are managing aggression and sexism. Whether it’s on the footy oval or in the workplace, aggression is just not acceptable anymore.
Even as recently as 10 years ago, who would have thought conservative Australia would have voted in favour of equal gay rights? We have never been more conscious of our mental health as a society. Bullies are being bullied into submission at schools and workplaces. There are ‘hubs’ in every city in Australia where competing businesses collaborate for the good of the industry.
We freely share knowledge and information with each other on social media channels like LinkedIn with the view that one person’s success is everyone’s success.
These are the changes in society that are also challenging the way we resolve disputes. When disputes are ‘solved’ in court, there is a winner and a loser and costs usually follow the event.
Sometimes, the loser deserves to lose but in many, many cases, the court’s decision does not resolve the matter at any level; it doesn’t progress the law based on precedent nor restore or repair the damaged and broken relationship.
Furthermore, as a society, we are moving away from the desire of wanting to be ‘right’ and to be the winner, at all costs. We are leaning more towards wanting to do what ‘is right.’ The world just keeps on getting smaller.
As a lawyer, I know the law must be right, the courts are right and therefore lawyers are right.
Lawyers are always right. Right? My concern is that lawyers, law societies and law firms have industry myopia. They are still focused on lawyers representing client’s in negotiation and litigation. They are still focused on being right and their clients being right as decided by third party. Lawyers are seeking validation that they are right. However, being right doesn’t offer to clients the relief like finality and certainty do.
As a mediator, my goal is to inform clients about their options on how they are able to resolve their legal disputes and empower them to resolve the dispute their way so that they can achieve genuine closure and get on with life and business.
With Google and the evolution of AI in the law, I believe that the future will see a significant shrinking of the ‘legal’ industry, and an evolution into a dispute resolution industry.
Granted, there will always be a need and a time and place for the law to be decided where there is an argument on the law, but these will become the minority of cases. I am confident that our judicial officers will relish in and enjoy the freedom, time and space to turn their judicial intellectual minds to those important legal decisions.
Already, I see this shift unfolding on a daily basis. The most appealing attributes of SHAW Dispute Resolution’s clients is that the vast majority are reasonable, keen to be heard and willing to listen.
They want resolution. This is in stark contrast to what we see in the media about the adversarial nature of dispute in courts on a daily basis.
Having spent over 20 years as a lawyer, I know how litigants approach court proceedings. Besides nerves, there is usually a great deal of principal, anger and animosity which has increased over the course of the litigation.
In a mediation setting, the approach is quite different. The participants know the purpose of the exercise is to acknowledge their contribution to the situation they find themselves in and to generate options to move forward. So, they approach the dispute resolution process with a different mindset. They put on their ‘big-boy pants’.
It’s amazing how everyone can be genuine, honest, sincere, gentle, kind, thoughtful, empathetic, considerate and understanding when they want to be. This is exactly how we approach the parties involved in a legal dispute. We ask them to commit to the mediation process and be honest, genuine, reasonable, courageous, persistent and to try hard to find common ground.
We as the mediator keep everyone future focused and move as fast through the process as the slowest participant and ensure that all parties are heard and evaluate the options to move forward.
A couple of months ago, I changed the name of my business from SHAW Mediation to SHAW Dispute Resolution to reflect the business road map of the company.
We don’t just offer mediation, but rather a full dispute resolution service incorporating mediation, family dispute resolution and arbitration.
We don’t see ourselves in the ‘legal’ industry but rather the dispute resolution industry, which is fast building in size and valuable service.
The availability of other dispute resolutions services without courts will change the future of the legal industry but it’s important to note that this is about organic growth and evolution.
Alison Shaw is a mediator at SHAW Mediation Australia.