With ever-increasing demands to properly resource and fund the courts and court services, governments are looking for ways to provide quick and cost-effective access to justice for their constituents. Reflecting this social and economic priority, most jurisdictions now incorporate some form of Alternative Dispute Resolution into the litigation process as a way to resolve disputes quickly and cheaply.

Meanwhile, lawyers continue to excel as fact-finders and being able to provide precise analysis of legal issues. As champions for their clients, they are also experienced negotiators and know how to effectively convey a position. These skills are all important if the aim is to 'win the fight’. But is this what clients are really looking for – or need – to resolve their disputes?

A new paradigm

Sometimes, judicial determination is the most appropriate means of dispute resolution, for example, to establish a precedent in interpreting a statutory provision for the public interest. 

However, a new paradigm is emerging on the very nature of conflict and how we process legal disputes. Its premise is: Most people prefer a quick resolution than a fight.

Certainly, courts and tribunals have traditionally aspired to efficient outcomes and, at least in recent times, embraced alternative dispute resolution – and mediation in particular – as a means of achieving this. However, practitioners may not be aware of a number of landmark UK decisions where the courts accepted that both a party’s refusal to participate in mediation and unreasonable behaviour within mediation can result in costs sanctions. 

A key driver of why mediation should have been attempted – perhaps reflecting a familiar lament of many clients – was captured by Lord Justice Sir Alan Ward who duly observed that “the costs of ADR would have been a drop in the ocean compared with the fortune that has been spent on this litigation”. 

Factors judicially considered not sufficient to justify a refusal to mediate include:

• A party’s belief that their case was watertight;
• A party’s belief that their claim that the case was too complex for mediation;
• A party’s “own obstinacy to assert that mediation had no reasonable prospect of success”;
• A detailed refutation of the opponent’s case had already been supplied; and
• Heavy costs had already been incurred .

An effective system of conflict resolution must enjoy the confidence of its users. Most people want quick, accessible and cost-effective resolutions to their disputes. This is resulting in a shift away from the ‘right v wrong’ paradigm to ‘good enough’. Practitioners skilled in solutions-driven dispute resolution beyond ‘right v wrong’ will be sought after.

Attaining a ‘good enough’ outcome has always been the core of mediation philosophy. However, it is only recently that a critical mass has been attained, resulting in ADR becoming an essential, rather than optional, part of the litigation process.

Governments are responding to this critical mass by establishing courts and tribunals who have a mandate “to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible”, “to encourage the early and economical resolution of disputes, including, if appropriate, through alternative dispute resolution processes”, and “to promote affordable and timely access to justice” via simple, speedy and inexpensive dispute resolution.

Similarly, courts and tribunals are responding to this critical mass in both their judicial determinations encouraging ADR, and in their practices and procedures where ADR runs parallel to, or forms an integral part of, the litigation process. 

Most recently, the Federal Court of Australia has introduced the National Court Framework.

Underlying the framework is a “nationally consistent and simplified practice – speedier and less expensive litigation with flexible case management and greater focus on ADR”. 

Key features include:

• Addressing the needs of litigants who seek highly skilled, expeditious and inexpensive dispute resolution;
• Flexible case management to take account of the character and needs of the parties;
• Enhanced facilitation of ADR (including mediation);
• Use of skilled registrars for ADR;
• Early case management hearings;
• Hearings set down, wherever possible, within six months of the case management hearing; and
• Judgement delivered within three to six months of trial.

The framework will “reinvigorate the court’s approach to case management” and shows the courts embracing the paradigm shift to “a quick resolution than a fight”.

Lawyers who similarly embrace this critical mass and who are willing and able to innovate their role at the front-end of disputes have the opportunity to integrate their practices into this new paradigm as one-stop ‘solution providers’.

Lawyers as a one-stop resolution shop

While ADR, and in particular, mediation provides one of the most effective vehicles for a quick and cost-effective resolution for clients, many lawyers (understandably) attempt to approach this in a traditional manner. However, while the traditional skills of a lawyer are apposite for a judicial determination, they are not necessarily conducive to, and may even be counter-productive for, resolution by mediation.

Moreover, traditional positional negotiation skills can attract the court’s disapproval. In one case, the court reduced a party’s costs and awarded costs against them on issues they had succeeded on because of their ambit claim in a mediation:

"For a party to agree to mediation but who then causes it to fail by reason of his unreasonable position in the mediation is in reality in the same position as a party who unreasonably refuses to mediate. In my view it is something which the court can and should take into account of on the costs order…"

The good news is that the lawyer’s traditional skills will always be in demand, but more often towards the ‘back end’ of a dispute – when ADR is not successful.

The Federal Court’s National Court Framework – consistent with the paradigm shift – shows that recent trends are towards ADR shortly after the start of proceedings, before the parties have invested too much time and money in the litigation process itself. This reduces entrenchment, removing a potential bar to settlement.

While some lawyers may be reticent about negotiating “without all the evidence”, this need not present a bar to a quick resolution and a satisfied client. Remember, there is always a cost. Lawyers who are ‘solution providers’ will have already quantified the time and cost of obtaining and exchanging evidence and are able to astutely develop options factoring in the lack of evidence. Indeed, the National Court Framework specifically contemplates limited discovery and evidence processes. 

Lawyers who are able to resolve conflicts within the context of limited discovery and evidence at an early stage of proceedings, or even before the start of proceedings, will be in high demand. Non-legal factors are at the source of, or at least heavily influence, conflict.

This is why the law can be a blunt tool in delivering satisfaction to those who are in conflict. While the law may provide the ‘legally correct’ outcome, it rarely provides the most holistic outcome – one that takes into account the parties’ underlying needs and interests.

The law focuses on acts and omissions, rather than thoughts and emotions. Yet thoughts and emotions are primary drivers in any dispute and are therefore pivotal to resolution.

Attuning to these drivers early will facilitate early resolution.

Lawyers who negotiate attuned to parties’ underlying needs and interests, motivations and world views – and beyond positional bargaining – are therefore more likely to facilitate options that are quick, cost-effective and lead to more lasting client satisfaction.

Most clients will be more satisfied with a “quick and good enough” resolution than a costly and protracted dispute to be “proven right”. And those who are not are still likely to appreciate your efforts in risk prevention and cost aversion – long before you bring your traditional legal skills to the fore.

Conclusion

Lawyers with traditional legal skills who also harness skills attuned to a quick and efficient ‘front end’ resolution based on their clients’ needs and interests, will be ideally placed to provide a ‘one-stop resolution shop’ – leading to better use of court and tribunal resources, more holistic outcomes and ultimately, more satisfied clients.

Bevan Hughes is a solicitor and full-time member of the Queensland Civil and Administrative Tribunal. He is a nationally accredited mediator and has mediated over 1,000 matters with a 97 per cent settlement rate. The views expressed are those of the author only and are not made on behalf of QCAT.