Training for Civil Lawyers

							What is it about me? What is it about
mediation?


Jill Howieson & David Rogers
Exercise
Assumptions/questions/reflections

• Is it the lawyer or is it the   • What is it about
  client that determines            people/cultures that
  the course of the dispute         enables them to make
  resolution (or a                  the shift or to cause
  combination)?                     them to remain
                                    entrenched?
• What are lawyers really
  thinking about                     – personality
  mediation?                         – nature/nurture
                                     – culture of the
    –   reduces billing                firm/practice
    –   superiors don’t like it
    –   don’t understand it       • What is it about me?
    –   love it?
Testing assumptions – results and reflections
Family lawyers and clients
• The majority of the family lawyers recommend and support the
  use of ADR/FDR processes, and think that their use benefits
  most family law matters.
• 33% of clients reported no referral to
  ADR/FDR – high conflict and high
  financial stakes.
• 44% of clients had previously
  been to another lawyer to help
  them to resolve the matter!
• Combination of client characteristics
  and approach of lawyer influence
  the course of the dispute resolution.
ADR training

  63% of the family lawyers reported having had some
  form of ADR training.
  Those lawyers with ADR training
   – significantly higher use of problem-solving
     negotiation behaviours
   – higher conciliatory orientation

  72% of civil lawyers ADR trained
                                                       LEADR
Civil litigation lawyers
                            35%

Settlement                  30%
                            25%
                            20%
                            15%
                            10%
                             5%
                             0%




                                  Lawyer


                                           Mediation


                                                       Court
ADR
• 53% referred clients mostly to a legally trained mediator
• 17% no referral to an ADR process
• Majority said recommend mediation to all clients and
  think that it benefits most cases
Mediation
83% comfortable with mediation
Reasons why not comfortable:
   – mediators sometimes bully my clients into settlement
   – the cost involved and often the mediator is more
     focused on forcing a settlement there and then
   – costs/other side's unwillingness to participate fully
   – it is difficult to find a creative solution in judicial review
     matters
   – I do not believe that mediation works
  Those who don’t use mediation: judicial review, debt
  recovery…
Interview data

Confirmations
   – Lawyers had a low level of
     knowledge of ADR principles
   – firm culture influences use of ADR
   – firms have moved away from in-
     house mediators
   – conflict of interest a factor in
     not using mediation
   – ADR seen as part of a court
     process
Interview data


Surprises
   – mediation is too expensive
   – I didn’t realise there were trained
     mediators in my firm
   – focus of mediation around pre-trial
   – We only use lawyers with extensive
     industry knowledge, sole
     practitioners and high level
     experience as mediators
Interesting quotes

 “With a behavioural matter [in the workplace] we
 might use ADR.”
 “Mediators need a volume of work …”
 “We did have people trained in the 90s but
 now…..”
 “Lawyers doing “make work” are less likely to take
 this path [mediation].
 “Some people are naturals [at mediation],
 some people are not.”
Discussion