Bulletin

Issue: October 2006

News

Alternative Dispute Resolution (ADR): What role for lawyers?

‘Since 2005, the first subject La Trobe University law students complete is Dispute Resolution. ‘

Professor Sourdin

The rapid increase in Alternative Dispute Resolution (ADR) has redefined the role of lawyers in Australia. Most who work within the civil litigation system are now exposed to ADR, and every court and tribunal in Australia has some ADR processes. This does not mean litigation is less important. A robust legal system is essential for ADR to operate effectively.

ADR comprises structured negotiation, mediation or arbitration. Mandatory pre-litigation schemes make ADR – rather than courts – the first port of call for most disputants and their lawyers.

Government, industry and the private sector have developed schemes such as the Telecommunications Industry Ombudsman and the Australian Banking and Financial Industry Ombudsman. In the family sector, sweeping changes require ADR to be used early in most disputes.

What do these changes mean for lawyers? Are they equipped to deal with them? Can they respond and adapt? Many say they can and have. The numbers who have received industry-based training in ADR such as mediation is significant. Many mediators and arbitrators are lawyers. However, there is continuing growth in non-lawyer ADR practitioners – and recent moves increasing mandatory pre-litigation ADR are likely to increase this sector.

However, the current lack of coherent ADR practitioner accreditation means anyone can call themselves a mediator in Australia. Two alleged crime figures have already done so. Two moves this year for national mediation accreditation, both fostered by the Commonwealth Attorney Generals Department, may remedy this problem so that ADR practitioners will at least be expected to display various competencies and attributes in order to be accredited.

Do lawyers engage appropriately in ADR processes? Many still wear their ‘adversarial suits’ and negotiate in a ‘gladiatorial manner’ when engaged in ADR. This suggests they find the transition to ‘interest-based’ rather than ‘adversarial processes’ difficult.

Their difficulties may be in part due to legal education and training in law schools that requires ‘rational’ rather than ‘relational’ thinking processes. To quote US lawyer, Daniel Bowling: ‘as a lawyer my mental functioning has shifted decidedly to the left brain. I know of one lawyer-turned-mediator who describes law school as a process in which the left brain circles around the right brain and eats it’.

Lack of ‘right brain’ thinking inhibits relational thinking and emotional intelligence. In addition, ADR and negotiation skills are usually not taught in a specific or directed way. Many lawyers say they have received training in analysis and reasoning – but little in advanced communication skills, apart from advocacy training.

The future of the legal curriculum is the subject of extensive debate, crystallised by the Australian Law Reform Commission in its discussion paper, Managing Justice – A review of the federal civil justice system. It notes Australian legal education remains anchored around ‘outmoded notions of what lawyers need to know’ rather than ‘what lawyers need to be able to do’.

Some change in teaching has already meant greater attention to the realities of lawyering, such as a client focus, emphasis on facts, negotiation and problemsolving rather than formal adversarial process. There has also been increased emphasis on critical perspectives, integration of law and society, greater use of experiential teaching and integrating skills teaching with substantive law.

Since 2005, the first subject La Trobe University law students complete is Dispute Resolution. They combine intensive skills-based training in ADR with a review of ADR in various jurisdictions.

How have the students responded? Some question the relevance of collaborative approaches to negotiation. Having seen legal practice portrayed as a largely adversarial process in the media, they may be keen to grind their opponents into the ground!

Most, however, have changed their views of lawyering with an increased understanding that lawyers require a range of negotiation styles – not just a competitive style – to serve their clients’ interests. We are currently finalising research into these different views about lawyering.

Many lawyers are aware that their role has been transformed in recent years. Apart from the shifts that have changed law from a profession into a business, they understand that keeping ‘good’ relations with their clients means they need to be flexible and responsive negotiators who recognise that their clients’ ‘interests’ may be different from, and additional to, their ‘rights. ‘

This awareness is not uniform across the profession. Many lawyers have never received training in negotiation. Few plan or consider the negotiation process, and most do not understand how and when to use different negotiation styles. As a mediator working in NS W and Victoria I have observed considerable differences in the way lawyers approach mediation. While most experienced lawyers display high levels of competence and understanding of ADR processes, a minority do not.

To settle a dispute, they will typically resort to a ‘high - low offer game’ (which on empirical evidence is less likely to produce a settlement) and often engage in tactics designed to insult or bully an opponent into submission. Such lawyers are unlikely to sustain long-term relationships with clients. Their display may fleetingly impress, but is more likely to promote suspicion and impede their relationship with clients.

This small minority are partly responsible for a shift towards prelitigation ADR that excludes lawyers.

In the face of such unskilled ‘lawyer negotiators’, some clients no doubt wonder whether they can adopt a ‘do-ityourself’ approach to negotiation. They may think they may be more successful, or at least will not damage their long-term association with the other party.

For lawyers the benefits of improving communication, conflict avoidance and dispute resolution skills are enormous. ADR processes and concepts can also help at a personal and organisational level.

They provide ‘user friendly’ skills for daily life that support client and work relationships.

Tania Sourdin is Professor of Law and Dispute Resolution at La Trobe University.