Question
Many scholars, judges and lawyers have analysed the challenges facing the legal profession in the 21st Century, from perspectives such as economic pressures, globalisation of markets, and the roles of Artificial Intelligence (AI), etc. The legal profession must continue its roles in maintaining the rule of law and assisting clients in accordance with the law. At the same time, however, it must also be capable of resolving legal disputes in an economical manner with least stress on parties. Thus, it needs to provide advice on and facilitate non-litigation processes for dispute resolution.
Discuss the roles of ADR in present-day Australia, and the important skills for legal professionals to respond to the institutionalisation of ADR processes prior to and alongside court proceedings.
In your essay, you should analyse the following aspects: • the role of ADR; • institutionalisation of ADR processes in Australia and its wider application; • important skills needed in ADR, for example, ‘client-facing skills’, summarising, capacity to diagnose disputes and to advise on appropriate processes for resolution, and how these skills may be developed and how they may relate to other important skills for the legal professionals in the 21st century; • how the legal profession should respond to the development of ADR and the changing society. You may also discuss other challenges and opportunities, as well as important skills relating ADR processes. It is, however, important that your essay is research-based, and consistent and coherent in argumentation. You must use at a minimum 8 secondary sources
Answer
Introduction
With the advent of technology and globalisation in the 21st century, considerable and drastic changes have occurred in various fields of occupations. The legal profession also has undergone several changes to keep up with the fast-paced world. The legal profession has also evolved with the globalisation of markets and artificial intelligence to streamline and increase productivity. However, changes in the profession cannot mean changes in its fundamental aims. Lawyers, judges, and every other legal professional have a duty to ensure that the principle of the rule of law is followed and that there is no breach of the law.
If any breach of law results in conflict or disputes, legal professionals have to resolve them once again. Initially, this duty was obliged by a court or a judge. However, with the recent changes in the legal field, alternate dispute resolution (‘ADR’) methods allow lawyers to act as dispute resolvers by way of mediation, negotiation, arbitration, counselling, etc. The development of ADR does not mean that litigation is no longer a viable option. Instead, there is an inter-relationship between the two and usually works hand-in-hand.
This paper will first look into the role of ADR, several types of ADR, and its benefits. Next, it will discuss how ADR methods have been institutionalised in Australia and how there is a growth in government-mandated ADR methods before and during litigation proceedings. For ADR to be successful and resolve disputes out of court, the ADR practitioners need to possess specific skills. These skills need not necessarily be similar to those used by litigating lawyers because both the processes are different. This paper discusses what these skills are and how they can be developed.
Finally, a few challenges to ADR methods are analysed and the paper concludes with a few suggestions given by the author on how to ensure that legal professionals imbibe the right skills to conduct ADR procedures successfully.
Role of Alternate Dispute Resolution
Over the last few decades, there has been a substantial increase in individuals and groups opting for alternative dispute resolution methods. Alternative dispute resolution includes various processes where parties voluntarily opt to resolve disputes outside of court. These processes primarily include negotiation, mediation, and arbitration. There are other hybrid methods as well, such as ‘med-arb’ (a combination of mediation and arbitration).
ADR provided alternative methods of resolution to parties and was a revolutionary concept decades ago. The origination of ADR can be traced back to the ‘National Conference on the Causes of Popular Dissatisfaction’, popularly known as the ‘Pound Conference’ in 1976. The Conference was called to discuss Roscoe Pound’s speech titled ‘The Causes of Popular Dissatisfaction with the Administration of Justice’ in 1906.[1]
Subsequently, Frank E.A. Sander, a Harvard professor proposed his vision of a ‘multi-door courthouse’.[1] In his paper, he discussed several processes for effective dispute resolution other than approaching courts.[2] According to him, the essence of a ‘multi-door court’ was to ‘look at different forms of dispute resolution – mediation, arbitration, negotiation, and med-arb.’.[3]
The rule of law is one of the cornerstones of any democratic nation and the judiciary has to maintain it and promote it. Litigation is the most popular option opted by aggrieved parties and hence the burden on the judiciary burden to resolve disputes increases exponentially. Litigation is costly, time-consuming, and increasingly frustrating with numerous court visits, required documentation, etc. Furthermore, there is never any guarantee or predictability of the outcome in litigation. Compared to this, ADR provides parties with an option of resolving disputes outside of court and reaching resolutions in an economical, faster, and similarly effective manner. It also ensures that the parties come to a solution that is satisfactory for all. The ADR processes are also often flexible and consider the parties' needs. ADR processes are not adversarial and allow the parties to agree without having a ‘win-lose’ attitude. It reduces the chances of malignity and hostility between the parties and will enable them to maintain any future business or personal relationship if wanted. It is an alternate process in ensuring the rule of law and access to justice in a country.
Institutionalisation of ADR in Australia
Many countries worldwide have seen tremendous growth in the use of ADR methods to resolve disputes between conflicting parties. Although courts continue to be the primary source of justice, there has been a ‘rapid and sustained growth and institutionalisation of ADR.’[4]
In 1975, the Family Law Act[5] was passed, which changed divorce and family law in Australia. There were several radical changes introduced by the Act, including establishing a family court to hear matrimonial and family law matters. A critical characteristic of the courts was that they acknowledged the importance of conciliation and counselling on the issues related to divorce and family disputes.[1]It was in the 1980s, however, when Australia saw the increase of ADR practices. This was due to Sir Laurence Street, who is considered the ‘godfather of ADR’ in the country.[2]
Over the next few decades, there was an increasing trend of parties opting for alternate methods of resolution and as a response, there has been an increase in the number of ADR institutions and processes in Australia. This led to institutionalisation of ADR, and it became a part of the country's legal justice system.
The National Alternative Dispute Resolution Advisory Council (NADRAC) delineated the various ADR processes in Australia. It was formed in 1995 and provided policy advice to the Attorney-General’s department on the ‘development of ADR and promoted the use of ADR.’[3] It discusses the non-exhaustive and various ADR processes for resolving disputes such as family mediation, commercial ADR, multiple tribunals, public policy dispute resolution, etc.
The mediation process was initially popular as a private practice, a method without any court order or mandate. There were also many ‘community mediations’ that involved community members (not necessarily law professionals) in mediating between parties. However, due to the growing success of ADR methods, mediation is considered ‘an equal or indeed, preferable method of handling disputes’ compared to litigation. And so, now for effective and successful mediation, only certified, authorised, and skilled with mediation practices can conduct mediation proceedings. This is one of the outcomes of ADR methods being institutionalised.
The institutionalisation of ADR has been taking place in Australia for many years. There are many instances where ADR processes occur before or even alongside court proceedings by way of legislation.[4]
Difference between Litigation and ADR Skills
Hence, to avoid the lack of proper implementation of ADR processes to disputes, it is essential to acknowledge that ADR is different from litigation and requires another skill set. ADR should not be considered secondary in nature. There are many instances where ADR methods are executed before litigation proceedings. In Australia, mandatory mediation has been in place for over two decades.[1]
As mentioned previously, the role of ADR in resolving disputes is increasing and in the 21st century, it is considered a more viable, economical, and cheaper alternative to litigation. However, with the rise of the popularity of such methods, there also arise issues. There is a need for proper institutionalisation of ADR processes which should result to be a resolution of potential problems of ADR. For example, the participation of parties in ADR needs to be fair, voluntary and they should be informed about the processes. Most importantly, there has to be a pool of qualified, trained, and effective law professionals who can ensure fair and effective dispute resolutions.[2]
There is a growing relationship between the process of litigation and ADR processes. The skills used in litigation processes cannot be completely effective, similar to mediation processes. And so, there should be a clear demarcation of the roles the legal professionals will have to play in these two processes.
Skills required for ADR
For ADR procedures to be effective and ensure justice and satisfaction to the parties, the negotiators, mediators, arbitrators, and other legal professionals need to imbibe specific skills and follow certain principles. There are several guidelines published by various bodies in Australia to help ADR professionals ensure that they represent their clients in the best possible way in such proceedings. Some of the skills ADR practitioners should follow are given below:
Before initiating any ADR process, legal professionals should analyse the dispute between the parties. They must know the client's goals, the dispute with the opposing party, the possibility of settlement, and the subsequent award. They should decide which mode of ADR is best suited for the conflict and which method would ensure the highest client satisfaction. The method of ADR should align with the goals and needs of the client. It is also important to note that the legal professional's skills depend upon ADR's method. Certain specific skills needed in negotiation proceedings cannot be enough for arbitration proceedings.
ADR practitioners should have excellent interpersonal skills. Excellent communication skills help ensure that all parties can communicate effectively and that the process of ADR remains smooth and flows towards a settlement. Specifically, lawyers should be skilled in negotiating in the negotiation process and be aware of their client's strengths and weaknesses and the opposing party.
Lawyers must also have excellent listening skills to understand their client’s needs and ensure that they can extract relevant information from the client. This will help the lawyers gauge the client’s goals and keep this information in mind while bargaining.
ADR professionals should have good problem-solving abilities and should be able to co-operate with the opposing party while also ensuring that the best interests of their clients are upheld. There should not be extremities and aggressiveness during the proceedings and manipulation cannot be used to win. ADR aims to reach an agreement or settlement between parties, and this should be kept in mind. ‘Adversarial negotiations’ should be avoided as they lead to ‘extreme agreements.[1]
In cases where lawyers already have practised in litigation proceedings and apply an adversarial approach to dispute resolution, there can be ‘re-education and training’ to ensure effective ADR processes.[2]
The lawyers in any ADR process should be well-versed with the relevant law and be prepared with counterarguments. They should know the subject matter of the dispute and also prior experience in the field.
In arbitration proceedings, the arbitrators must have expertise and knowledge on the subject matter of the dispute. One of the advantages of arbitration proceedings is that the parties can resolve their arguments before a person with specialised expertise in the relevant field of law. More often than not, judges do not possess the expertise required to solve very technical disputes in niche areas of law.
There is no third party in negotiation proceedings, so the lawyers have to ensure that the proceedings reach a settlement and the conflict between the parties does not escalate. They should ensure that they follow the required guidelines and rules of conduct and not break any fundamental principles of ADR such as confidentiality and misrepresentation.
In mediation proceedings, the role of the mediator is such that he can conduct private sessions called ‘caucuses’ with each party, and in these sessions, the party reveals confidential information. The mediator should ensure that this confidential information is not revealed to the opposing party during the proceedings. Furthermore, the mediator must ensure that the parties have a ‘forward-thinking approach’ rather than dwell on the past.[1] This should also be followed in arbitration proceedings.
Along with this, lawyers should ensure that there is no misrepresentation of information from their side. All relevant information should be provided truthfully and factually.
Developing these Skills
One of the most efficient and essential ways to disseminate knowledge about ADR and develop skills needed for such processes is by ensuring that law students are exposed to it in law schools. As the practice of ADR grew, there was a rise in theoretical courses on understanding what ADR consists of and how the processes work. Consequently, these courses expanded to provide a practical sense of how these proceedings occur through clinical pedagogy.
Learning about ADR mechanisms and their practices in a more well-rounded and holistic manner can be done by incorporating ADR skills into more ‘traditional’ courses taught in law school. For example, in courses teaching Contract Law, negotiation and mediation processes can also be conducted about resolving disputes arising from breach of contracts. Furthermore, arbitration proceedings should be explained during Contracts courses to ensure that law students learn about arbitration clauses in contracts and how to go about such proceedings if necessary. Similarly, in civil law classes, learning about negotiation and mediation can be helpful as it will allow law students to meet the needs of their future clients in a better manner.
Response to Development of ADR
The development of ADR practices is seen worldwide and in every field of law. ADR methods complement the role of courts in resolving disputes. It is not a substitute for the litigation method but an ‘alternative’ to it. The legal profession should accept ADR as an advantageous and effective method of resolving disputes and welcoming its changes to society. It not only provides advantages to the parties but also the legal professionals.
There are several reasons why the development of ADR should be seen as a welcome change. Firstly, it allows lawyers to develop interpersonal skills such as communication, listening, problem-solving, understanding the client’s needs, etc. In an adversarial approach in litigation, lawyers often forget the client or the victim and focus only on winning. The needs of the client are ignored. However, in ADR methods, lawyers can connect with the client and focus primarily on their needs.
Furthermore, legal professionals should respond positively to the popularity of ADR because it reduces the burden on the courts. The dockets of courts are full of petty arguments, small commercial transactions disputes and family disputes. ADR allows for the quick resolution of these matters. Legal professionals can hence take on various issues spanning over multiple fields of law and expand their legal skills. This also allows courts to focus on fundamental rights, civil rights, and human rights.
Along with this, ADR helps in preserving relationships. It does not pit one party against another but aims to resolve the dispute and reach a settlement. It is an excellent method of dispute resolution in the 21st century and legal professionals should not feel threatened or afraid of ADR. Instead, embracing the development of ADR will allow them to expand their knowledge, skills, and expertise. ADR allows for growth in the legal field and provides excellent opportunities to legal professionals.
Conclusion
The role of lawyers in the ADR mechanisms is significant. The institutionalisation of ADR processes will help achieve the vision of a ‘multi-door courthouse’ and reduce the courts' burden. Having multiple and alternative options for resolving disputes ensures that there is no congestion of litigation proceedings. Disputes regarding divorce, custody, property and commercial disputes can be determined by way of ADR, which leaves the courts to focus on cases of constitutional nature about human rights, equality, and other fundamental issues.
It is essential to approach these methods systemically and strategically to allow ADR processes to reach their full potential. These processes should be introduced to legal professionals, and they must be trained to inculcate the necessary skills for effective ADR proceedings. Furthermore, these skills are distinct from the skills required in litigation and hence, if necessary, lawyers should also be ‘re-trained’ to ensure that they have the essential skills for effective ADR sessions. Arbitrators, mediators, negotiators, etc., all need to possess proper credentials and understand the appropriate working and aims of ADR methods to ensure that ADR stays an appropriate and viable option for aggrieved parties to resolve disputes.
Bibliography
Baron, Paula, Lillian Corbin and Judy Gutman, 'Throwing Babies out with the Bathwater: Adversarialism ADR and the Way Forward' (2014) 40(2) Monash University Law Review 283
Bowe, Guy, ‘Skills and Values: Alternative Dispute Resolution: Negotiation, Mediation, Collaborative Law, and Arbitration’ (2014) 6 Arbitration Law Review 467
Hazel Genn, 'Civil Mediation: A Measured Approach7 ' (2010) 32 Journal of Social Welfare and Family Law 195
Jong, Madelene de, ‘Divorce mediation in Australia: valuable lessons for family law reform in South Africa’ (2007) 40(2) Comparative and International Law Journal of Southern Africa 280
Levin, Leo, and Russell R Wheeler (eds) The Pound Conference: Perspectives On Justice In The Future: Proceedings Of The National Conference On The Causes Of Popular Dissatisfaction With The Administration Of Justice (1979)
National Alternative Dispute Resolution Advisory Council (NADRAC), A Framework for ADR Standards (April 2001)
Rana, Rashda, ‘How International Commercial Arbitration has Influenced the Growth of ADR in Asia’ (2014) 1 Alternative Dispute Resolution Bulletin 116
Waye, Vicki, 'Mandatory Mediation in Australia's Civil Justice System' (2016) 45(Issues 2-3) Common Law World Review 214
Family Law Act 1975 (Cth)
‘Alternative Dispute Resolution’, Australian Government: Attorney-General’s Department (Web Page) <https://www.ag.gov.au/legal-system/alternative-dispute-resolution>