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LAWS3365 – Alternative Dispute Resolution 20282313 THE CIVIL DISPUTE RESOLUTION ACT 2011 (CTH) AND LAWYER PERCEPTIONS OF THEIR ROLE IN DISPUTE RESOLUTION Introduction Federal Attorney-General Robert McClelland asserted that the implementation of the Civil Dispute Resolution Act 2011 (Cth) (‘the Act’) seeks to bring about cultural change in the conduct of litigation, such that ‘Increasingly, lawyers [will] not see themselves purely as litigators, or legal advisers, but also as dispute managers’1. This essay seeks to highlight that while the Act does lay the necessary foundation for cultural change, this alone is not enough to produce a long lasting change in lawyers’ perceptions of the role in dispute resolution. As such, legal education in Australia must evolve to incorporate a consideration of Alternative Dispute Resolution (ADR) throughout a student’s degree. It is only once the traditional mindset of adversarial approaches to dispute resolution is challenged that a significant cultural change within the legal profession can occur. From Litigation to Alternative Dispute Resolution It is the shift from the dominance of adversarial processes to the incorporation of ADR in the Australian legal system that has prompted the need for change in lawyers’ perceptions of their role in dispute resolution. There has been an evolution in dispute resolution processes in Australia since the 1980s2, ultimately contributing to the push for cultural change in the conduct of litigation and the emergence of legislative reform. Traditionally, adversarial processes, based on legal rights, entitlements and remedies, dominated the Australian legal system3. This conventional mode of dispute resolution was centred on judicial determination, according to the rules of evidence and procedure4. However, public disillusionment with this system grew, with accusations of it being expensive, out of date, complex, slow and lacking regard to victims of crime and the public generally5. Brennan even reported that the civil 1 Robert McClelland, ‘Early Resolution Promises Better Outcomes’ The Australian, 29 July 2011. 2 Ann Ardagh and Guy Cumes, ‘The Legal Profession Post-ADR: From Mediation to Collaborative Law’ (2007) 18 Australasian Dispute Resolution Journal 205, 205. 3 Judy Gutman, ‘Legal Ethics in ADR Practice: Has Coercion Become the Norm?’ (2010) 21 Australasian Dispute Resolution Journal 218, 218. 4 Judy Gutman, ‘The Reality of Non-Adversarial Justice: Principles and Practice’ (2009) 14(1) Deakin Law Review 29, 33. 5 Michael King et al, Non-Adversarial Justice (2009), 10. 1 LAWS3365 – Alternative Dispute Resolution 20282313 justice systems in many common law jurisdictions were ‘in crisis’ 6, highlighting the need for change. As a result, the use of ADR as a valuable alternative to litigation experienced increased recognition throughout Australia and the world7. We have seen the emergence of the use of dispute resolution processes, such as mediation, conciliation and arbitration, both as a part of mainstream adjudicative methods, or as stand-alone replacements for adversarial processes8. The reforms to the Family Law Act 1975 (Cth) in 2007 are a clear example of support for the shift towards the increased use of ADR. Parties are now required to firstly attempt to resolve disputes through family dispute resolution9 and the Family Law Rules 2004 (Cth) establish alternative pre-action procedures10. Ultimately, traditional adversarial models are now seen as only appropriate ‘as a method of final resolution when preliminary ADR processes have not resolved the dispute’11. However, despite the changing legal system, Justice Ipp criticised that lawyers were still adopting confrontational approaches to dispute resolution12. The Australian Law Reform Commission (ALRC) also recognised the growing importance of ADR and the need for change in lawyers’ attitudes to the use of non-litigious avenues of dispute resolution13. They recommended that standards of conduct for legal practitioners needed to be reviewed and developed in line with negotiation and other ADR processes 14. There have been some developments within the legal profession, which seek to change the attitudes of lawyers to their role in disputes and encourage them to embrace ADR practice. For example, a set of Model Rules of Professional Conduct and Practice were adopted by the Law Council of Australia15 and there has been the inclusion of rules in many jurisdictions that require 6 Sir Gerdard Brennan, ‘Key Issues in Judicial Administration’ (1997) 6 Journal of Judicial Administration 138, 139. 7 Kathy Douglas, ‘The Teaching of ADR in Australian Law Schools: Promoting Non-Adversarial Practice in Law’ (2011) 22 Australasian Dispute Resolution Journal 49, 49. 8 Gutman, above n 3, 218. 9 Family Law Act 1975 (Cth) s 10F. 10 Faimly Law Rules 2004 (Cth) r. 105. 11 Ardagh and Cumes, above n 2, 206. 12 Bobette Wolski, ‘Reform of the Civil Justice System 25 Years Past: (In)adequate Responses from Law Schools and Professional Associations? (And How Best to Change the Behaviour of Lawyers)’ (2011) 40(1) Common Law World Review 40, 59. 13 ALRC Review of the Adversarial System of litigation: rethinking legal education and training, 1.6. 14 Wolski, above n 12, 64. 15 Law Council of Australia, Model Rules of Professional Conduct and Practice (March 2002). 2 LAWS3365 – Alternative Dispute Resolution 20282313 practitioners to inform clients of ADR mechanisms16. Nevertheless, Wolski highlights that these changes have been piecemeal and that ‘if ‘a change of lawyers’ fundamental attitudes and values is not made – through appropriate changes in practice standards and education – reform to the civil justice system may not be sustained over the long term’17. It is with this backdrop that the Act seeks to change the attitudes of lawyers, thus furthering the appreciation and uptake of ADR mechanisms. Civil Dispute Resolution Act 2011 (Cth) The Act is one example of recent legislative reform that promotes ADR and ultimately lays the foundations for an environment that promotes the changing of lawyers’ attitudes towards dispute resolution. Macfarlane asserts that a ‘new lawyer’ is emerging, whose role is extended to include acting as a conflict resolution advocate, rather than a client champion18. As stated in the Explanatory Memorandum, one of the overall aims of the Bill, as reflected in the object, is the ‘change of adversarial culture often associated with disputes’19. Inherent in this is the need for lawyers to change their understanding of their role in dispute resolution. In the view of Robert McClelland, federal Attorney-General at the time, the Act would do just this, bringing about cultural change such that ‘Increasingly, lawyers [will] not see themselves purely as litigators or legal advisers but also as dispute managers’20. The Act does put forward mechanisms that mandate the consideration of ADR processes by lawyers and their clients, however whether this changes lawyer perceptions of their role in dispute resolution is questionable. Firstly, it imposes a duty on lawyers to ensure that their clients take ‘genuine steps’ to resolve disputes before instigating court proceedings21. ‘Genuine steps’ is not defined in the Act, however examples of steps that can be taken are given. Such examples include notifying the other party of the issues22, considering dispute resolution facilitated by another person (including ADR processes) 23 and 16 Wolski, above n 12, 69. 17 Wolski, above n 12, 93. 18 Julie Macfarlane, The New Lawyer: How Settltement is Transforing the Practice of Law (UBC Press, 2008) 16, 22. 19 Explanatory Memorandum, Civil Dispute Resolution Bill 2010 (Cth) 7.0. 20 McClelland, above n 1. 21 Civil Dispute Resolution Act 2011 (Cth) s 9. 22 Ibid, s 4(1)(a). 23 Ibid, s 4(1)(d). 3 LAWS3365 – Alternative Dispute Resolution 20282313 attempting to negotiate with the other party24. As highlighted in the Explanatory Memorandum to the Bill, ss 4(1)(d) to (f) seek to ‘encourage a facilitated process for resolving a dispute, such as an ADR process’25. Ultimately, the Act is mandating that lawyers take a different approach to dispute resolution, however whether this will cause lawyers to change their role perceptions is debatable. As Cukier notes, ‘rules, guidelines and recommendations alone will only go so far in assisting the paradigm shift’. Ultimately, substantive education and training is required to ensure that lawyers start to see themselves as dispute managers, thus embracing support for ADR processes. Ethical Tension for Lawyers While the Act certainly seems to be establishing a nation wide approach to ADR, in reality the pressure on lawyers to become dispute managers is placing them in a situation of ethical tension, again prompting the need for supportive ADR education. Sourdin warns that the obligations imposed by the Act and similar legislative regimes in Australia may have ‘far- reaching implications for legal practitioners involved in ADR practice in the civil justice context’26. Essentially, the growing presence of ADR in the legal system poses ethical challenges for lawyers27. As Gutman highlights, ‘legal practitioners have been accultured to adversarialism’28. However, there has been ‘evolution of legal practice’ which values litigation but privileges ADR29. As such, while lawyers strived to ‘win a case’ for clients in the past, they are now increasingly called upon to ‘help resolve a dispute’ or settle a dispute through the provision of legal services30. Lawyers will be constantly faced with the question of whether the ADR approach jeopardises their client’s chance of ‘winning’ the case, therefore ethically compromising practitioners, or whether it leads to a ‘better’ outcome31. Additionally, as ADR begins to further penetrate the legal system, the traditional paternalistic 24 Ibid, s 4(1)(g). 25 Explanatory Memorandum, Civil Dispute Resolution Bill 2010 (Cth) 9.0. 26 Tania Sourdin, ‘Making an Attempt to Resolve Disputes before Using Courts: We All Have Obligations’ (2010) 21 Australasian Dispute Resolution Journal 225. 27 Gutman, above n 4, 44. 28 Judy Gutman, ‘Litigation as a Measure of Last Resort: Opportunities and Challenges for Legal Practitioners with the Rise of ADR’ (2011) 14(1) Legal Ethics 1, 4. 29 Macfarlane, above n 18, 16. 30 Felicity Nagorcka, Michael Stanton and Michael Wilson, ‘Stranded between Partisanship and Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice’ (2005) Melbourne University Law Review 14. 31 Scott R Peppet, ‘ADR Ethics’ (2004) 54 Journal of Legal Education 1, 72-8. 4 LAWS3365 – Alternative Dispute Resolution 20282313 roles of professionals to their clients is being eroded32, thus challenging traditional stereotypes about the role of lawyers in dispute resolution. It therefore remains evident that while the Act certainly does turn lawyers minds to ADR, education is crucial to ensuring that this ethical tension can be resolved. Legal Education Education as a Tool for Shaping Role Perceptions The value of education in shaping lawyers’ attitudes to their role in dispute resolution cannot be understated. If a change in lawyers’ perceptions of their role in dispute resolution is to occur, the legislative reform brought about by the Act needs to be supported by education that establishes lawyers as dispute managers. In his article Feeling Like a Lawyer, Michael Meltsner asserts that: ‘a central fact of law teaching… is that students take on the skills and norms of the lawyer’s role, they are changing themselves and us, altering their own and our conception of they act and should act’33. McClelland also highlights the importance of education, stating that cultural shift towards dispute management by lawyers needs to be promoted through education. He stresses that the transformation of legal education in Australia is ‘fundamental to the implementation and durability of this change’34. Importantly, as Macfarlane said, legal education is a key site for the development of non-adversarial practice by law students35. It therefore seems appropriate that in order to assess the ability of the Act to bring about cultural change in the conduct of litigation, it is necessary to undertake an examination of the current legal education system in Australia and to identify possible areas for improvement. Dominance of Adversarialism in the Australian Context 32 Gutman, above n 4, 45. 33 Michael Meltsner, ‘Feeling Like a Lawyer’ (1983) 33 Journal of Legal Education 624, 624. 34 Attorney-General Hon Robert McClelland MP Address to the Conference on Dispute Resolution Dispute Resolution in the next 40 years – Revolution or Repertoire? University of NSW Sydney, Thursday 1 December 2011. 35 Douglas, above n 7, 49. 5 LAWS3365 – Alternative Dispute Resolution 20282313 The future ability of the Act to generate cultural change in the conduct of litigation may be hindered by the Australian legal education system, which ultimately promotes adversarial approaches to dispute resolution. Riskin asserts that lawyers gain a ‘standard philosophical map’ throughout their legal education36, which ultimately informs their conduct within the legal profession. Throughout history this map has privileged the role of litigation in dispute resolution37, perhaps to the detriment of developments in ADR. In the past law schools have focussed on the adversarial nature of law, in particular the technical aspects of the law, litigation, legal reasoning and the necessary skills to piece together a compelling argument38. This emphasis on adversarialism affects the subsequent practices of law students, reflecting that ‘much of the techniques and mentality adopted by lawyers is the result of learning and training’39. The ALRC criticised that academic legal education concentrated on appellate decisions and court processes to the detriment of the majority of disputes resolved outside of courts. They commented that ‘This may create an expectation that court based adjudication is the norm in legal practice’40. Caputo warns that much of the adversarial methods and mindsets of lawyers are inherently incompatible with the goals and practice of mediation and other forms of ADR41. For example, while in many forms of ADR the responsibility of the process lays with the disputants42, in adversarial processes the lawyers act on the behalf of clients and retain substantial control. Perhaps most notable is that while the adversarial system focuses on individual gain and winning43, non-adversarial processes such as mediation seek to identify interests of disputant’s and do not emphasise winning or losing44. It therefore follows that the continuance of a legal education system dominated by adversarialism is incompatible with the cultural change that the Act seeks to bring about. If attitudinal change is to occur so as to 36 Leonard Riskin, ‘Mediation and Lawyers’ (1982) 43 Ohio State Law Journal 29, 43. 37 Kathy Douglas, above n 7, 50. 38 Kenneth Acton, ‘Impact of Mediation on Legal Education and on the Profession’ (1999) 17 Windsor Yearbook of Access of Justice 256, 258. 39 Kovach K ‘New Wine Requires New Wineskins: Transforming Lawyer Ethics For Effective Representation in a on-Adversarial Approach to Problem Solving Mediation’ (2001) 28 Fordham Urban Law Journal 935, 973. 40 Australian Law Reform Commission, Review of the Federal Civil Justice System, Issue Paper No 20 (1997) [1.10]. 41 Chiara-Marisa Caputo, ‘Lawyers’ Participation in Mediation’ (2007) 18 Australasian Dispute Resolution Journal 84. 42 Neilson L, ‘Solicitors Contemplate Mediation: Lawyers’ Perceptions of the Role and Education of Mediators’ (1990) 4 International Journal of the Law and the Family 235, 237. 43 Bush RAB, ‘What Do We Need a Mediator For?: Mediation’s Value Added for Negotiators’ (1996) 12 Ohio State Journal of Dispute Resolution 1 at 2. 44 Kovack K, Mediation: Principles and Practice (3rd ed, West, 2004) p 179 6 LAWS3365 – Alternative Dispute Resolution 20282313 result in lawyers seeing themselves as dispute managers rather than litigators, an appreciation for non-adversarial methods of dispute resolution needs to be fostered in law schools. Room for Improvement? While the Australian legal system has recognised the need to evolve and provide for the inclusion of ADR in school curriculum, in order for lawyers to increasingly see themselves as dispute managers, rather than litigators, further reform is needed. There have been several calls for education reform in Australia45, most recently McClelland’s request for the National Alternative Dispute Resolution Advisory Council to support and promote the development of ADR education within Australia46. While he does note that the University of New South Wales is taking the lead in education reform by undergoing a major curriculum review, McClelland stresses that he still believes there is a need for universities to take a broader approach to the incorporation of ADR initiatives into law school curriculums47. In her article ‘The Teaching of ADR in Australian Law Schools: Promoting Non- Adversarial Practice in Law’, Kathy Douglas offers valuable insights to the education of lawyers in Australia. She highlights that some Australian universities have specific ADR subjects within their curriculum, while others incorporate ADR as part of subjects or as skills programs48. These courses are offered to varying extents and may be compulsory or elective. Further, Douglas stresses that more research is needed in order to discover the best ways to teach ADR in Australia49. Of significant importance, the article finds that some stand-alone and combined ADR courses do deal with the role of the lawyer in ADR, however the concern was often not addressed in experiential learning. Further, these teachers ‘were attempting to change students’ orientation to conflict so that students’ valued ADR, whilst still understanding the importance of the role of courts’50. It is teaching practice such as this that is crucial to supporting the object of the Act – i.e. the encouragement of a cultural change in lawyers’ perceptions about their role in dispute resolution. Douglas concludes that a national 45 NADRAC, The Resolve to Resolve: Embracing ADR to Improve Acess to Justice in the Federal Jurisdiction (September 2009) p 62, Recommendation 4.4; Law Reform Committee, Parliament of Victoria, Alternative Dispute Resolution and Restorative Justice (September 2009) p 161, Recommendation 38; Letter from New South Wales Attorney-General John Hatzistergos to Australian universities (17 May 2010). 46 McClelland, above n 1. speech 47 Ibid. 48 Douglas, above n 7, 51. 49 Ibid, 52. 50 Ibid, 55. 7 LAWS3365 – Alternative Dispute Resolution 20282313 forum on ADR education is required to develop a community of practice, similar to that of the United States51. Thus, it is evident that while ADR education is certainly improving in Australia, there remains substantial room for improvement. An examination of the recommendations put forward by North American scholars regarding the integration of ADR into legal education curriculum provides some useful suggestions of how to better ADR education in Australia and thus encourage lawyers to become dispute managers. Morris talks of the establishment of practicum opportunities for students and the introduction of interdisciplinary certificate or degree programs in dispute resolution in Canadian universities52. In particular, she draws light to the University of Victoria, which has established an Interdisciplinary Master of Arts in Dispute Resolution53, an important step in seeking to change not only lawyers perceptions about their roles in ADR, but also broadening wider public support for the field. She does, however, stress that the downfall of the Canadian legal education system is the continued dominance of adversarial style teaching and ADR courses being generally optional, rather than compulsory54. Riskin and Westbrook explain that ideal practice would be to disperse ADR education amongst first year courses, as professionalisation is at its strongest then and students are most impressionable55. Similarly, Acton purports that in order for graduating students to have ‘theoretical knowledge and practical skills in conflict resolution and collaborative problem solving…integration of these concepts throughout the curriculum’ should be provided56. An inspection of the integration of ADR into the curriculum of law schools in Western Australia, however, reveals that there is indeed room for improvement and that many of the suggestions above should be incorporated into law school programs. At the University of Western Australia, only two units in ADR are provided, each being an optional unit taken towards the end of the degree57. Similarly, at Edith Cowan University only one elective unit is 51 Ibid. 52 Catherine Morrie, ‘Moulding of Lawyers: ADR and Legal Education’ (1999) 17 Windsor Yearbook of Access to Justice 271, 273. 53 Ibid, 274. 54 Ibid, 279. 55 Leonard Riskin and James Westbrook, ‘Integrating Dispute Resolution Into Standard First-Year Courses: The Missouri Plan’ (1989) 39 Journal of Legal Education 509, 510. 56 Kenneth Acton, ‘Impact of Mediation on Legal Education and on the Profession’ (1999) 17 Windsor Yearbook Access to Justice 256, 259. 57 University of Western Australia, UWA Handbooks 2012 – Rules. 7.2.2 Bachelor of Laws Pass and Honours Degree (2012) <http://courses.handbooks.uwa.edu.au/?p=22025> as at 28 April 2012. 8 LAWS3365 – Alternative Dispute Resolution 20282313 listed as an available course58. The University of Notre Dame seems to be taking the lead amongst the Western Australian universities, including ADR as a compulsory unit and Murdoch University offers a range of units covering ADR, however these remain optional. It seems that despite the literature surrounding the need for increased ADR education and suggestions that ADR principles be incorporated throughout the law degree, Western Australian universities are still off the mark. They have failed to incorporate ADR practices at all stages of the course, and in particular ADR remains an optional pathway of study for a majority of students. It would appear that teaching styles may still encourage students to develop adversarial approach dispute resolution, which ultimately hinders the pace and extent of role perception change. It should be noted, however, that there are outside bodies providing significant positive contributions to the training of already accredited lawyers. For example, LEADR offers training programs for lawyers in ‘ADR awareness’ and provides seminars entitled ‘lawyers in mediation’59. Further, law schools do now teach legal ethics as a compulsory unit, encouraging students to think about their role as lawyers, however whether this sufficiently addresses ADR or even considers it at all cannot be guaranteed. Recommendations for Improvement in Australian Legal Education It therefore remains clear that in order for lawyers to begin to question their traditional role as litigator and embrace the role of dispute manager, the legal education within Australia needs improvement. As McClelland noted, ‘it is not until we invest in adequate ADR training of law students that we will begin to see a cultural shift in the legal profession towards less adversarial and more proactive dispute management’60. As such, Australian universities should integrate the above recommendations into their curriculum. They should strive to incorporate consideration of ADR processes throughout the law degree, alongside the teaching of adversarial techniques, with particular emphasis during students’ first formative year. Most importantly, ADR should be mandated for all students, rather than optional, in order to provide a balanced approach to the teaching of conflict resolution. It is with these changes that lawyers will begin to develop the framework necessary to support and indeed drive the cultural shift that the Act strives to achieve. 58 Edith Cowan University, Law & Justice 2012 Course Guide (2012) <http://www.ecu.edu.au/__data/assets/pdf_file/0005/14378/ECU-UG-Law.pdf> as at 28 April 2012. 59 Caputo, above n 42, 90. 60 McClelland, above n 1. 9 LAWS3365 – Alternative Dispute Resolution 20282313 Conclusion It thus remains evident that while the Act sets down the necessary grounding for a change in lawyers’ perceptions of their role in dispute, the legal education system must be supportive in order for this change to be long lasting. The mechanisms set out by the Act represent a step in the right direction towards appreciation of ADR processes. However, as has been shown, legal education still promotes adversarial approaches to conflict resolution, inherent in the nature in the structure of courses and failure to incorporate ADR across the board. Australian universities must therefore acknowledge the call for reform by McClelland and seek to broaden their approach to dispute resolution by teaching students about the range of resolution processes available and provide the means to gain practical experience in the area. Ultimately, once the traditional mindset regarding the role of lawyers in dispute resolution is challenged, Australia will be closer to achieving the cultural change to dispute resolution that the Act seeks to bring about. Word Count: 3,000. 10
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