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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system grew, with accusations of it being expensive, out of date, complex, slow and lacking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.


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     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).


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     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).


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     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.


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     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.


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     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


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     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.


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     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.


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     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.


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    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.




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