DISPUTE RESOLUTION AND CATHARSIS: DO LAWYERS
HAVE A DUTY TO TRY TO RESTORE RELATIONSHIPS?
S. A. Benson
A thesis submitted in fulfillment of the requirements for the degree of
Master of Laws (Dispute Resolution)
SUPERVISORS
Jonathon Rae & Cameron Holley
Faculty of Law
University of New South Wales
Sydney, Australia, 2017
DECLARATION
I hereby declare that this submission is my own work and to the best of my knowledge it
contains no materials previously published or written by another person, nor material which to a
substantial extent has been accepted for the award of any other degree or diploma at UNSW or
any other educational institution, except where due acknowledgement is made in the thesis. Any
contribution made to the research by others, with whom I have worked at UNSW or elsewhere,
is explicitly acknowledged in the thesis.
I also declare that the intellectual content of this thesis is the product of my own work, except to
the extent that assistance from others in the project’s design and conception or in style,
presentation and linguistic expression is acknowledged.
S. A. Benson
i
ACKNOWLEDGEMENTS
I would like to thank the following people for generously sharing their knowledge, technical
expertise and experience, and gracious support.
University of New South Wales:

Prof. Jonathon Rae, for his dedicated and patient supervision and valuable feedback

Prof. Rosemary Howell, for her enthusiasm for teaching the gentle art of negotiation
Gilbert & Tobin:

Allison Sadick, for her typing and format support and reality testing many of my ideas
ii
TABLE OF CONTENTS
DECLARATION ....................................................................................................................... i ACKNOWLEDGEMENTS ..................................................................................................... ii TABLE OF CONTENTS ........................................................................................................ iii LIST OF FIGURES ................................................................................................................. vi LIST OF ABBREVIATIONS ................................................................................................. vii ABSTRACT............................................................................................................................ viii 1 CHAPTER ONE: INTRODUCTION................................................................................ 1 1.1 HISTORICAL BACKGROUND OF DISPUTE RESOLUTION............................... 1 1.2 ALTERNATIVE DISPUTE RESOLUTION .............................................................. 2 1.3 CASE MANAGEMENT AND CIVIL LITIGATION ................................................ 5 1.4 DEFINING ‘ADR’ AND ‘MEDIATION’ ................................................................... 6 1.5 COMMON FORMS OF RELATIONAL DISPUTES ................................................. 7 1.6 A LEGAL DUTY ......................................................................................................... 8 1.7 LAWYER’S CURRENT DUTIES IN RESOLVING DISPUTES ............................... 9 1.8 LAWYERS’ DUTY TO THE COURT....................................................................... 10 1.9 OBJECTIVES............................................................................................................. 10 2 CHAPTER TWO: DISPUTE RESOLUTION.................................................................. 11 2.1 RISE OF ADR............................................................................................................ 11 2.2 BENEFITS OF ADR ................................................................................................. 13 iii
2.3 CURRENT APPROACH TO ADR IN AUSTRALIA ............................................... 14 2.4 USE OF ADR IN AUSTRALIA................................................................................. 15 2.5 ADVANTAGES OF ADR ......................................................................................... 15 2.6 CATHARSIS............................................................................................................... 16 2.7 THE IMPORTANCE OF ‘BEING HEARD’ ............................................................ 17 3 CHAPTER THREE: ADR ADVOCATES ....................................................................... 17 3.1 LAWYERS AS ADR ADVOCATES IN AUSTRALIA.............................................. 17 3.2 DUTY TO ENGAGE IN DISPUTE RESOLUTION ALTERNATIVES ................ 18 3.3 CONFLICTING DUTIES ......................................................................................... 19 4 CHAPTER FOUR: A DUTY TO MEDIATE OR RESTORE ......................................... 20 4.1 A DUTY TO TRY TO RESTORE RELATIONSHIPS IN AUSTRALIA................. 20 4.1.1 Express duty ......................................................................................................... 20 4.1.2 Implied duty ......................................................................................................... 22 4.2 A WORD OF WARNING – SOME DISPUTES SHOULD BE LITIGATED......... 23 5 CHAPTER FIVE: DISCUSSION ..................................................................................... 24 5.1 WORLDVIEW ........................................................................................................... 24 5.2 A CHANGE IN APPROACH OR ATTITUDE TO ADR ........................................ 26 5.3 THE CASE FOR A DUTY TO RESTORE ............................................................... 27 5.4 DEVELOPMENT OF THE DUTY: BASIS AND CONTENT................................ 29 5.5 CONCLUSION .......................................................................................................... 34 iv
6 CHAPTER SIX: REFERENCES ...................................................................................... 38 6.1 BIBLIOGRAPHY ...................................................................................................... 38 6.1.1 Articles/Books/Reports ....................................................................................... 38 6.1.2 Cases .................................................................................................................... 48 6.1.3 Legislation ............................................................................................................ 50 6.1.4 Delegated Legislation............................................................................................ 51 6.1.5 Other.................................................................................................................... 51 v
LIST OF FIGURES
Figure 1. The relationship between disputes and dispute resolution modes employed ................ 3 Figure 2. NSW District Court figures showing breakdown of civil outcomes for 2015 ............. 35 Figure 3. NSW District Court figures showing civil outcomes for years 2012-15...................... 36 Figure 4. NSW Supreme Court figures showing civil ADR outcomes for years 2011-15........... 37 vi
LIST OF ABBREVIATIONS
ASCR
ADR
CLA
CM
CPA
DCNSW
FCA
FCR
FPA
LEADR
Med-Arb
NADRAC
SCNSW
UCPR
Australian Solicitors Conduct Rules
Alternative, Assisted or Appropriate Dispute Resolution
Civil Liability Act 2002 (NSW)
Case Management
Civil Procedure Act
New South Wales District Court
Federal Court Act
Federal Court Rules
Family Provision Act
Leading Edge Alternative Dispute Resolvers
Mediation-Arbitration
National Alternative Dispute Resolution Advisory Council
New South Wales Supreme Court
Uniform Civil Procedure Rules
vii
ABSTRACT
In contentious matters, the practice of law has tended to focus on seeing a client’s ‘best interests’
as requiring them to be involved in a litigated scenario where ‘A wins; B loses.’1 There has
traditionally been less emphasis on the part of lawyers on trying to understand the underlying
causes and dynamics responsible for bringing people into conflict. Similarly, there has been little
concern to assist clients in any way other than solving the particular legal problem in which
lawyers are instructed. Lawyers have viewed such roles as the domain of the social worker or
counselor, not that of the lawyer. In this paper, I propose a new role for lawyers in which the
ground rules upon which litigation is played out nowadays have shifted and that these, in turn,
have brought about a cultural change in the worldview of lawyers with regard to their perceived
and actual duties when acting for clients beset by conflict. Alternative dispute resolution and
case management have driven this change. This cultural shift has led to lawyers being far more
involved in alternative dispute resolution, whether by compulsion or good practice, and this
uptake has brought about a revolution in how lawyers advise clients in the twenty-first century.
The ‘game theory’ of litigation is over. Case management and alternative dispute resolution,
along with changes in professional conduct rules, have cut such a swathe through how disputes
are resolved that parties and the lawyers who advise them have been forced to go back to the
strategic drawing board and consider afresh how the dispute arose, what can be done to settle it
and identify causal conduct and circumstances in order to avoid conflict in the future and restore
relationships, if possible. Lawyers’ roles have changed from a mentality of winning a court case
at all costs to assisting clients to explore where they went wrong and how they can learn from it,
and how they might empower clients to restore their relationship with their counterpart in the
instant transaction or with future parties with whom they may have to deal. Catharsis almost
always involves living through a negative experience out of which past mistakes and tensions are
in some way cauterized in the process. There are good reasons for dispute resolution to be seen
as a cathartic process and lawyers to be seen and in fact to play a central part in this process.
1
‘At the end of a trial, at the end of an appeal, the judge will be compelled to reduce a complex slice of human experience with all its
subtlety, to what is, in essence, a one line answer: "A wins; B loses."’ Keynote address by the Hon. Justice Kenneth M. Hayne at the
Judicial Conference of Australia, Melbourne, 13 November 1999, “Australian Law in the Twentieth Century”.
viii
1
CHAPTER ONE: INTRODUCTION
1.1
HISTORICAL BACKGROUND OF DISPUTE RESOLUTION
Dispute resolution has roots in antiquity. The biblical command to ‘love another’ involves being
‘reconciled’ to one another, including one's enemies (Matthew 5:24). The Christian Gospel is one
of reconciliation (Matt 5:25, 44; 1 Corinthians 6:7). In the Old Testament, Jacob and Esau were
reconciled (Genesis 33:4) and Joseph made peace with his brothers who had sold him into
captivity after he realised that good had come from his suffering (Genesis 50:20). Nehemiah too,
whose enemies tried to oppose his wall rebuilding project in Jerusalem in the 5th century BC, was
invited to ‘confer’ with them (Nehemiah 6:1-2).2 Conversely, the overweening machinations of
humanity in Babel ended not in restoration, but scattering and inability to communicate (Genesis
11:8-9).3 The historian, Josephus, writing in the first century, regarded being able to ‘reconcile
enemies to one another’ as ‘the most excellent of our doctrines’.4 At the heart of dispute
resolution is the idea of forgiveness and reconciliation of some kind. Most ancient cultures valued
dispute resolution insofar as it restored disputing parties to one another.5 This same ethic
continues to undergird the approach to dispute resolution throughout many cultures today.6
Whereas the West became overly litigious, many Asian cultures regard litigation as a last resort.7
This thinking has slowly caught on in the common law world too. The therapeutic justice and
collaborative law movements argue that ADR should be applied in a holistic way to the
2
Albeit his opponents' intentions were sinister (Nehemiah 6:2b)
3
A picture of separation and confusion, that might be said to be the antithesis of ADR’s aims: effective communication and reconciliation.
4
Flavius Josephus, The Antiquities of the Jews, 15.136 (first published in around AD93).
5
‘There are references to dispute resolution practices by the Phoenicians, the Greeks, the Indians and the Irish’: Laurence Boulle, ‘A History
of Alternative Dispute Resolution’ (2005) 7 Alternative Dispute Resolution Bulletin 1; Bobby K Y Wong, ‘Traditional Chinese Philosophy
and Dispute Resolution’ (2000) 30 Hong Kong Law Journal 304; Bee Chen Goh, ‘Ideas of Peace and Cross-Cultural Dispute Resolution’
(2005) 17 Bond Law Review [i], 57; Justice Peter McClellan, ‘Dispute Resolution in the 21st Century; Mediate or Litigate?’ Paper given to
the National Australian Insurance Law Association, Hamilton Island, 17-19 September 2008 (Early communities tended to rely on primitive
forms of arbitration for the resolution of disputes).
6
It is not only common law jurisdictions, such as Australia, the United Kingdom, the United States and Canada where ADR has developed; a
number of civil law jurisdictions have also embraced ADR, including jurisdictions as far afield as Mexico, Italy, France, Malta and Russia:
Miryana Nesic, ‘Mediation - On the Rise in the United Kingdom’ (2001) 13 Bond Law Review [i], 2, 9; Daniel H Levine, Harmony, Law
and Anthropology (1991) 89 Michigan Law Review 1766.
7
Wong, above n 5; Goh above n 5. This phenomenon may be partly explained by the development in the West of the focus on action
stemming from Aristotle’s ‘account of action’ as the focal ‘unit of morality’ as distinct from the ancient Chinese (Confucian) view of
harmonious, aesthetic social discourse as ‘crucial’ to ‘guiding behaviour’: Laozi, Tao Te Ching on The Art of Harmony (Chad Hansen, trans,
Watkins, 2009) [first manuscript c 3rd century BC]. But the idea of ancient Chinese culture as somehow devoid of advanced strategies for war
would be a mistake: see Sun Tzu, The Art of War (Samuel B Griffith, trans, Watkins Publishing, 2005) [first manuscript c 4th century BC].
1
resolution of disputes.8 This has come to be known as the ‘harmony approach’ and is seen as a
way of handing back control of the management and resolution of disputes to the participants.9
This approach seeks to transform ADR by leveling-out any power imbalance between the
disputants so that those in the weaker position are equipped or ‘empowered’ so that their voice
may be heard.10 In this way, disputes become transformed and parties’ approach to resolution and
interaction shifts from being ‘destructive to constructive’.11 Through this process, parties
experience a change in the dynamic between them.12 ADR has a vital role as a restoration
process13 as it is an important ‘communication event’14 capable of bringing about radical change.15
1.2
ALTERNATIVE DISPUTE RESOLUTION
Alternative dispute resolution (ADR) is ‘an umbrella term for processes’ by which disputes or
issues between disputants are resolved or managed with the assistance of a neutral party.16 ADR
is no longer ‘alternative’17 but ‘appropriate’ or ‘additional’.18 ADR is mainstream and now lies at
8
Michael S King, ‘Restorative Justice, Therapeutic Jurisprudence and the Rise of Emotionally Intelligent Justice’ (2008) 32 Melbourne
University Law Review 1096, 1123.
9
Some proponents of change envision the potential for a systemic shift from the "advocate-controlled, adversarial, formalized, rights-based,
lengthy and costly" to "client-controlled, cooperative, relational, informal, interest-based, flexible, early, expeditious and efficient": Thomas
J Stipanowich, ‘Managing Construction Conflict: Unfinished Revolution, Continuing Evolution’ (2014) 34 Construction Lawyer 13.
10
John Lande, ‘How Will Lawyering and Mediation Practices Transform Each Other?’ (1997) 24 Florida State University Law Review 839,
859; Forrest S Mosten, ‘Lawyer as Peacemaker: Building a Successful Law Practice without Ever Going to Court’ (2009) 43 Family Law
Quarterly 489, 500; Robert Mnookin and Lewis Kornhauser, 'Bargaining in the Shadow of the Law: The Case of Divorce' (1979) 88 Yale
Law Journal 950, 991; it should also be said that lawyers have played and will continue to play a vital role in this process of empowerment in
disputes where clients are, for example, in a perceived or actually weaker bargaining position than their counterpart.
11
Robert A Baruch Bush and Joseph P Folger, The Promise of Mediation: The Transformative Approach to Conflict (Jossey Bass, revised ed,
2005) 22–23 (When both [empowerment and recognition] are held central in the practice of mediation, parties are helped to transform their
conflict interaction – from destructive to constructive – and to experience the personal effects of such transformation.) cited in Thomas J
Stipanowich, ‘The International Evolution of Mediation: A Call for Dialogue and Deliberation’ (2015) 46 Victoria University of Wellington
Law Review 1191, 1193.
12
Sophia H Hall, ‘Restorative Justice: Restoring the Peace’ (2007) 21 Chicago Bar Association Record 30, 31.
13
Joshua D. Rosenberg, ‘Interpersonal Dynamics: Helping Lawyers Learn the Skills, and the Importance, of Human Relationships in the
Practice of Law’ (2004) 58 University of Miami Law Review 1225, 1249 (Participating in the process of giving and receiving feedback
provides incentives to learn as well as both new alternatives and a place to practice them).
14
ADR provides an informal, structured setting within which communication may be viewed as an ‘ongoing process’ Jonathan H Millen, ‘A
Communication Perspective for Mediation: Translating Theory into Practice’ (1984) 11 Mediation Quarterly 3; Periodicals Archive Online
275, 276.
15
As to the potential of ADR to bring about radical change in the practice of law in general, see Robert A. Baruch Bush, ‘Mediation and
Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation’ (1989-1990) 3 Journal of Contemporary Legal Issues 1, 18.
16
Millen makes the point that even if a mediator, for example, is not truly neutral, ‘neutrality is the goal, even if it is not the starting point’:
Millen, above n 14, 280.
17
Justice Patricia Bergin quoted in Judge Joe Harman, ‘From Alternate to Primary Dispute Resolution: The pivotal role of mediation in (and
in avoiding) litigation’. Paper presented to the National Mediation Conference Melbourne, 2014.
18
D. Alan Rudlin, ‘Ethics: A Duty to Inform Clients about ADR?’ (1996) 11 Virginia Lawyers Weekly 342 (Alternative dispute resolution
has unquestionably evolved into much more than an "alternative" to litigation. Embraced and implemented by the courts, by corporate
counsel and increasingly by law firms, ADR has become a well established, integral part of the practice of law); Robyn Carroll, ‘Trends in
Mediation Legislation: All for One and One for All or One at All’ (2002) 30 University of Western Australia Law Review 167; see also
Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in New South Wales (Thompson Reuters, 2nd ed, 2012), Ch
4; Paul Coves, ‘Alternative or Mainstream? Is it time to take out the ‘A’ out of ADR?’ (2015) 20 Proctor 43.
2
the heart of the resolution of a wide range of civil disputes in society.19 ADR is the preferred way
of resolving civil disputes (see Figure 1)20. The prospect of civil cases going to trial and judgment
has receded.21
Figure 1. The relationship between disputes and dispute resolution modes employed22
ADR has not yet supplanted judicial determination in the sense that it still remains a vital adjunct
to the court system.23 ADR has, however, certainly supplemented litigation to such a degree that
the vast majority of civil disputes are resolved more by ADR nowadays than by trial and judicial
19
Susan Blake, Julie Browne and Stuart Sime, A Practical Approach to Alternative Dispute Resolution (Oxford University Press, Oxford,
2011), 204-5.
20
Blake et al, above n 19, 5 [1.13].
21
It should be remembered that negotiation in the context of pending litigation is not new and lawyers have been engaged in both for a long
time; long before ADR began. Litigation has always had a strong element of negotiation about it. ADR has ‘ratcheted-up’ the settlement rate.
Whilst parties are busy litigating, they are very often busy negotiating behind the scenes too, which is why so many cases settle out of court:
‘Settlement is the norm’: Carrie Menkel-Meadow, ‘Whose Dispute Is It Anyway: A Philosophical and Democratic Defense of Settlement (In
Some Cases)’ (1995) 83 Georgetown Law Journal 2663, 2664-5; McEwen and Wissler coined the term ‘litigotiation’ to describe this
interplay between litigation and negotiation: Craig A McEwen and Roselle L Wissler, ‘Finding out If It Is True: Comparing Mediation and
Negotiation through Research’ (2002) Journal of Dispute Resolution 131, 133.
22
Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System: Report by the Access to
Justice Taskforce (Attorney-General’s Department (Cth) 2009) available at:
<https://www.ag.gov.au/LegalSystem/Documents/A%20Strategic%20Framework%20for%20Access%20to%20Justice%20in%20the%20Fed
eral%20Civil%20Justice%20System.pdf> reproduced in Tania Sourdin, ‘Civil Dispute Resolution Obligations: What is Reasonable?’ (2012)
35 University of New South Wales Law Journal 889, 894.
23
Hall, above n 12, 31 (The adversarial process has its place and always will, but it is not necessarily the best way to approach every dispute
to obtain a lasting, satisfying and meaningful solution). Although ADR probably never will replace litigation, there is, however, a system that
has already been suggested, the 'multi-door courthouse', which, although it has not taken off in Australia, it will be argued later in this paper,
has a place such that cases may be placed into pre-filing and post-filing ADR and/or litigation tracks, where disputes are triaged even before
filing and for courts to play a role even at that early stage. Such a system would see ADR and litigation as operating hand in glove rather than
as alternatives, and are seen to be complementary and play complementary roles in the resolution of disputes. See Judith Resnik, ‘Many
Doors, Closing Doors? Alternative Dispute Resolution and Adjudication (1995) 10 Ohio State Journal on Dispute Resolution 211, 241-62.
3
determination (see Figures 2-4)24. Commentators have proffered many reasons for this positive
development. One view is that ‘early ADR proponents’ argued that courts were not ‘meeting
needs and underlying interests’ as ‘non-adversarial formats’ were, which ‘better met the interests
of the parties’, particularly area such as divorce and family law.25 The winds of change blew from
the academy, psychology, the 'therapeutic', 'transformative' or 'comprehensive' law movement,
the judiciary, the perennial mother of invention, necessity and the fact of ADR’s apparent
widespread success. The ‘quiet revolution’ of ADR26 came about largely as a result of ADR
offering more ‘holistic solutions’27 to people in dispute, and the role of lawyers, as ‘gatekeepers of
the justice system’28 has evolved as part of sweeping cultural and societal change in the way the
legal profession, the judiciary and the community began to embrace different forms of ADR.29 As
ADR has gained momentum, lawyers have had to adapt. ADR has brought about a unique and
still developing multi-dimensional30 role for lawyers in dispute resolution31 as ‘change agents’32
capable of ‘fostering communication and strengthening relational ties.’33 ADR is a ‘reaction
against the alienating and competitive style of dispute resolution fostered by the adversarial
system.’34 Rather than adopt a 'binary' approach with a 'limited remedial imagination'35 which 'may
24
Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers'
Responsibilities’ (1997) 38 Southern Texas Law Review 407, 426. One need only take a cursory glance at figures published by the NSW
District and Supreme Courts to see the low number of matters proceeding to trial and the percentage of cases settled by or discontinued after
some form of court-annexed or privately arranged ADR: see Annual Reviews of the NSW District Court and NSW Supreme Court for the
years 2014 to 2016, for example (Figure 2); Peter Cashman, ‘Civil Procedure, Politics and the Process of Reform’ in Miiko Kumar and
Michael Legg (eds), Ten Years of the Civil Procedure Act 2005 (NSW) (Thomson Reuters, 2015), 229-232.
25
Menkell-Meadow, ‘Whose Dispute?’, above n 21.
26
Stipanowich, ‘Dialogue’, above n 11, 1196-1197.
27
Evans and King, 741; based as 'holistic lawyering' is on 'spiritual growth for both client and lawyers': Mosten, 494.
28
Stipanowich, ‘Dialogue’ above n 11, 1209; Breger also helpfully observes that, as gatekeepers, lawyers have a duty to ‘spare the courts
from unnecessary litigation’ citing Jackson v. Philadelphia Housing Authority 858 F Supp. 464,472 (E.D. Pa. 1994): Marshall J. Breger,
‘Should an Attorney be Required to Advise Client of ADR Options?’ (2000) 13 Georgetown Journal of Legal Ethics 427, 432-3. This
statement must be correct in light of the requirements now, in New South Wales, for example, under section 345(1) the Legal Profession Act
2004 (NSW) which provides that a lawyer is prohibited from acting in cases that lack ‘reasonable prospects of success.’
29
Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers'
Responsibilities’ (1997) 38 Southern Texas Law Review 407, 428-429, n 99.
30
Given the 'multidimensional nature of legal problems including their emotional dimensions', which require 'more comprehensive strategies
to promote their resolution': Michael King, above n 8, 1125.
31
Lehman skilfully paints a very accurate picture of the lawyer’s position, especially in the context of the anxious client, who is an ‘ordinary,
infrequent user of lawyers’ when he says: ‘The client does not know the substance of his problem or perhaps what even to expect from his
lawyer. It is in large measure up to the lawyer to define what the relation is going to be. It is his ethical responsibility’: Warren Lehman, ‘The
Pursuit of a Client’s Interests’ (1979) 77 Michigan Law Review 1078, 1084.
32
Perlin calls lawyers potential ‘healing agents’: Michael L Perlin, ‘A Law of Healing’ (2000) 68 University of Cincinnati Law Review 407-8.
In ADR and relationship restoration, people in disputes very often need help; people ‘do not have to tackle issues in their own…it is
impossible for us to do so…if we tackle them with others we will find the wisdom and the strength to do so. Alone they will prove too much;
together they are manageable…’ Robert Banks, All the Business of Life (Albatross, 1987), 92. Lawyers must start to see themselves as
serving others in this important area.
33
Stipanowich, ‘Dialogue’ above n 11, 1209-1210.
34
Margaret Thornton, ‘Mediation Policy and the State’ (1993) 4 Australian Dispute Resolution Journal 230, 235 cited in Laurence Boulle,
Mediation: Principles, Process and Practice (LexisNexis, 2011), 60.
35
Carrie Menkel-Meadow, ‘The Trouble with the Adversary System in a Postmodern, Multicultural World’ (1996) 38 William & Mary Law
Review 5, 7.
4
thwart essential goals'36 of the adversarial system, lawyers must uphold ADR’s vision37 as it
provides a ‘highly unique context for the resolution of conflict.’38
1.3
CASE MANAGEMENT AND CIVIL LITIGATION
Much has changed in the court system in the last 30 years. The way civil litigation is managed is
in response to greater awareness of increasingly scarce judicial resources. There are also different
discretionary factors at play when it comes to courts granting or refusing relief than there were 20
years ago. The ‘overriding’ or ‘overarching’ purpose of ensuring the ‘just, quick and cheap’
conduct and disposal of civil litigation, and compliance with, procedural rules, is a paramount
discretionary factor, which was almost foreign to courts before the 1990s.39 As a result of reports
into civil justice, particularly in the United Kingdom by Lord Woolf,40 law reform was influenced
in a number of jurisdictions, including Australia, leading to the widespread adoption of case
management.41 Case management has been the order of the day for the last 20 years in a number
of jurisdictions. ADR is case management’s beating heart. The need to reign in burgeoning court
lists had become critical. Case management has successfully cleared civil litigation backlogs.42
Case management owes its success to the increased use of mandated ADR and judicial alacrity
for making orders adverse to any party or lawyer who seeks to subvert its principal objectives.43
Legislative change has also contributed to reduced rates of civil litigation in Australia and
elsewhere.44 Civil case management in Australian and United Kingdom underpinned by ADR
(mediation; informal settlement conferences) has led to most civil cases settling before trial.45
36
Menkel-Meadow, The Trouble’, above n 35, 5.
37
Boulle, Mediation, above n 34, 293.
38
Millen, above n 14, 281.
39
A key objective of the case management reforms in Australia and enshrined in section 56(1) of the Civil Procedure Act 2005 (NSW) and
other State and Territory (and federal) equivalents.
40
H Woolf, Access to Justice, Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (1995); Access to
Justice, Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (1996).
41
Ronald Sackville, 'Civil Justice Reform: The Third Phase' in Miiko Kumar and Michael Legg (eds), Ten Years of the Civil Procedure Act
2005 (NSW) (Thomson Reuters, 2015), 213.
42
Baruch Bush, Robert A, ‘Mediation and Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation’ (1989-1990) 3
Journal of Contemporary Legal Issues 1, 2; Richard Birke, ‘Evaluation and Facilitation: Moving Past Either/Or’ (2000) Journal of Dispute
Resolution 309, 311; Stipanowich, above n 9, 11.
43
The figures speak for themselves: see Figures 2-4 below. With regard to the effect of the civil justice reforms in England and Wales, see
also Cashman, above n 23, 232; see State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; Aon Risk Services Australia Limited v
Australian National University [2009] HCA 27; 239 CLR 175 and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic
Management and Marketing Pty Limited [2013] HCA 46. 88 ALJR 76.
44
An example of this is the Civil Procedure Act 2002 (NSW), which brought about a sharp fall in civil filings, particularly in the NSW
District Court, which is reputedly the busiest civil trial court in Australia. The statistics published by the NSW Supreme Court and District
Court evidence this trend: see the statistics at Figures 2-4 below. These figures show that civil litigation filings spiked just before the Civil
Procedure Act came into force. There has been a consistent stark reduction in civil filings in both courts since. In the United Kingdom, the
5
The evidence of ADR's success in civil dispute resolution is unassailable. In New South Wales,
figures published by the District and Supreme Courts show that the proportion of cases resolved
by ADR vastly outweighed those that went to trial between 2014 and 2016.46 Part of ADR's
success has been a healthy judicial proclivity to 'fine' even a successful party for snubbing courtannexed ADR opportunities. Capolingua v Phylum Pty Ltd and Dunnett v Railtrack plc stand out as
landmark Australian and English authority, respectively, on point.47
Along with the changes to civil litigation, which case management and ADR have brought about,
there has been a line of authority in three important areas consistent with this new civil justice
regime. The categories of cases may be described as policy, costs and ADR enforcement
decisions.48 A sample of the authorities reflects growing corporate dissatisfaction by the courts
with lawyers and parties who are reluctant or unprepared to engage in ADR in good faith or at
all, and who regard litigation and the court process as a sort of ‘card game.’49 In summary, this
new environment that lawyers find themselves in, where the emphasis is on the resolution of
disputes by ADR, rather than fully contested judicial adjudication, raises questions about the
precise role and duties of a lawyer in this ever changing legal landscape. Community expectations
of lawyers’ roles and duties have changed too, as have those of the judiciary and lawyers’
professional bodies, cast in the dual role of promulgator of conduct standards and trade union.
Given ADR’s pre-eminence, it is time to consider whether lawyers have a duty to try to restore
relationships, where possible, and, if so, how such a duty may be said to arise and what it entails.50
1.4
DEFINING ‘ADR’ AND ‘MEDIATION’
There is a need to address some definitions before proceeding further. 'ADR' means processes by
which disputes are dealt with other than by judicial determination, such as mediation, arbitration,
drop in the number of cases filed in the Chancery and Queens Bench divisions of the High Court after the Woolf reforms were implemented
was even more stark (although the author notes that debt claims and enforcement were transferred to the County Court, the drastic reduction
in cases filed does coincide with the procedural reforms and the increased emphasis on ADR to achieve case management ends and legal
costs savings): Cashman, above n 23, 232.
45
See Cashman, above n 23, 232.
46
New South Wales District Court Annual Review 2016; New South Wales Supreme Court Annual Review for 2015.
47
(1991) 5 WAR 137; [2002] 2 All ER 850; it is important to bear in mind that the conduct complained of and judicially condemned in
Capolingua went beyond an ‘obstructive and uncooperative attitude’ at the mediation, which the Trial Judge said was ‘rendered nugatory by
the conduct’ (Ipp J, 6); the defendants, who succeeded at trial, were deprived of their costs as their conduct with regard to mediation was part
of a course of conduct designed to frustrate the ADR initiatives of the Expedition List for the speedy determination of disputes (per Ipp J, 4).
48
These authorities are dealt with throughout: see n
49
An approach eschewed in the strongest possible terms by the New South Wales Court of Appeal, especially vociferously by Heydon JA, as
he was then, in Nolan v Marson Transport (2001) 53 NSWLR 116; [2001] NSWCA 346.
50
In the sense of an actual duty, all things considered, as distinct from one ‘on first appearance’, other things being equal: Stephen Charles
Mott, Biblical Ethics and Social Change (Oxford University Press, 1982), 154-60; John Jefferson Davis, Evangelical Ethics (P&R
Publishing, 1985), 6.
6
conciliation and facilitation. NADRAC has a useful glossary of good working definitions for each
of these terms.51 'Mediation' where used throughout refers to a form of without prejudice,
facilitated negotiation where the mediator is the negotiation facilitator.52 Section 25 of the Civil
Procedure Act 2005 (NSW) provides that mediation is ‘a structured negotiation process in which
the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their
own resolution of the dispute.’ The NADRAC definition is: 'Mediation is a process in which
participants to a dispute, with the assistance of a dispute resolution practitioner (a mediator),
identify the disputed issues, develop options, consider alternatives and endeavour to reach an
agreement.'53 A mediator has 'no advisory or determinative role'54 except where mediation takes a
more evaluative or expert form.55 Where reference is made to ‘restoration of relationships' or
'restoring relationships', this means, at a minimum, enabling or empowering parties to the instant
dispute as well as potential future disputes to live normal commercial or personal lives where they
have the capacity to engage on a normal footing with the other party or with future parties in a
non-combative, non-adversarial and co-operative manner.56 Finally, LEADR defines mediation as
‘a process in which the participants, with the support of a mediator, identify issues, develop
options, consider alternatives and make decisions about future actions and outcomes. The
mediator acts as a third party to support participants to reach their own decision.’57 These
definitions of mediation all emphasise process, party participation and the mediator’s neutrality.58
1.5
COMMON FORMS OF RELATIONAL DISPUTES
The three main areas where people find themselves in dispute are personal, vocational, and
commercial.59 Not all disputes involve parties who are in any relationship in the foregoing
51
The NADRAC Glossary of ADR Terms is available at
https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/Dispute%20Resolution%20Terms.
PDF (last accessed 3 November 2017).
52
Brown v Rice [2007] EWHC 625 (Ch) 625 [13], [21] and Chris Guthrie, ‘The Lawyer's Philosophical Map and the Disputant's Perceptual
Map: Impediments to Facilitate Mediation and Lawyering’ (2001) 6 Harvard Negotiation Law Review 145.
53
NADRAC Glossary of ADR Terms.
54
In this regard, the NADRAC definition agrees with section 25 of the Civil Procedure Act 2005 (NSW).
55
Where, according to the NADRAC definitions of each of these forms, some kind of evaluative or industry or technical expertise is
regarded as an appropriate mediation mode for dealing with the unique issues peculiar to some disputes.
56
'A more complete and satisfactory resolution of the dispute is possible by restoring relationships through the collaborative process of
restorative justice': Hall, above n 12, 31.
57
The Australian National Mediator Standards: Approval Standards September 2007 reproduced in LEADR Mediation Workshop Materials,
Sydney, 28 April-2 May 2014.
58
William L F Felstiner, Richard L Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming…’
(1980 - 1981) 15 Law & Society Review 631, 632 (studying the emergence and transformation of disputes means studying a social process).
59
Dwight Gollan, ‘Is Legal Mediation a Process of Repair or Separation – An Empirical Study and Its Implications’ (2002) 7 Harvard
Negotiation Law Review 301, 308 (‘marital, commercial and organisational’ relationships are the usual categories of relationship that end in
disputes).
7
categories. For example, the parties to a patent infringement dispute will invariably be unrelated
parties who may or may not be known to one another in a particular field or market. In the
context of disputes between unrelated parties, lawyers have no duty to ‘restore any relationship’
as there is no relationship to restore.60 There may though still be lessons to learn. In other
contexts, where parties have had a longstanding relationship and/or they are likely to have an
ongoing relationship irrespective of the outcome of the dispute, for example, in a family,
workplace or contractual setting, it is submitted that lawyers do have a duty to try to restore such
relationships as part and parcel of resolving or least managing the dispute. It is a narrow view of a
client’s ‘best interests’ to say that a client’s legal problem is the sole cause of a dispute and the
only impediment to resolution. There is a ‘back story’ lurking behind the most common disputes,
to which only the parties are privy. Often, hotly contested disputes seem trivial to outsiders, such
as lawyers. What someone perceives as a dispute is a dispute even if others do not understand it.61
A dispute is something ‘felt’.62 People reach a tipping point63 where the dispute ‘escalates’ into a
strongly perceived need to do something about it.64 Empathy matters then in all ADR contexts.65
1.6
A LEGAL DUTY
Legal duties of lawyers usually refer to what lawyers ‘should do’ or ‘ought to do’.66 A duty may be
moral,67 ethical,68 or contractual, arising by virtue of the lawyer/client retainer.69 The duty on
lawyers to endeavour to restore relationships where their clients are in dispute is something that
60
As Golann has argued, ‘repair assumes rupture’: Gollan, above n 60, 307-308.
61
Just as anything that is perceived as noise, is noise; it matters not that others do not or cannot also ‘hear’ it. It is the same with pain.
62
Felstiner et al, above n 58, 633 (a dispute is a perceived injurious experience or ‘PIE’); Bernard Mayer, The Dynamics of Conflict (JosseyBass, 2nd ed, 2012), 5 (conflict is something people feel on an emotional level).
63
Often due to underlying unresolved conflict.
64
Mayer, above n 62, 19-24.
65
Craig Smith, ‘Applying findings from neuroscience to inform and enhance mediator skills’ (2015) Australian Dispute Resolution Journal
249, 257-8 (developing an environment of trust can enable a neural shift for people towards approach patterns).
66
A legal obligation owed by one person to another, which may require the performance of, or refraining from, certain actions: P. Nygh and
P. Butt (eds), Butterworths Australian Legal Dictionary (Sydney: Butterworths, 1997), 396.
67
Moral ought-ness is difficult to discern in a relativistic post-modern world; relativistic in the sense that the concept of objective truth is
contested and post-modern discourse discloses a rejection of the idea of language being capable of describing reality to embracing the idea
that language creates reality. All thought is perspectival, interpretive and provisional. ‘Post modern philosophy … includes … an anti (or
post) epistemological standpoint; anti-essentialism; antirealism; anti-foundationalism; opposition to transcendental arguments and
transcendental standpoints; rejection of the picture of knowledge as accurate representation; rejection of truth as correspondence to
reality…’: Bernd Magnus “postmodern” in Robert Audi (ed) The Cambridge Dictionary of Philosophy (Cambridge University Press, 2nd
ed, 1999), 275-7 (emphasis added). How the acolytes of post-modernism advance their ideas, if truth is elusive, is a logical conundrum for
them and others to try to explain.
68
That is, practical rules. If the term ‘morals’ describes how humans act, then ‘ethics’ is the evaluation of morals: Andrew J B Cameron,
Joined-up Life (Inter-Varsity, 2011), 19. On this analysis, morality is descriptive, while ethics is proscriptive. Ethics helps us to understand
morality. Morality provides the map whereas ethics is the compass guiding and giving us a sense of ethical ‘ought-ness’.
69
‘The contract between legal practitioner and client for the provision of legal services’: Nygh and Butt, Butterworths Australian Legal
Dictionary, above n 65, 1024.
8
lawyers ‘ought to do’, where possible. If it is not an ethical duty (imposed by professional
conduct rules or in equity),70 it may be implied into a lawyer’s retainer in contentious matters.71
Making the case for such a duty involves a consideration of the lawyers’ existing obligations.
Stipanowich argues that seeing lawyers as only engaged in ‘back and forth distributive bargaining’
after parties ‘lawyer up’ is a tired approach.72 This model is a relic from another age when
litigation was still in the hands of lawyers and their clients. Negotiation in the context of disputes
is a ‘dance’ now, requiring familiarity with ADR alternatives.73 Lawyers ought not contribute to
‘mediation dysfunction’ mediation’s success is too important.74 It is time for relational restoration
to be seen as part of clients’ best interests. ADR has a unique potential to improve relationships.
1.7
LAWYER’S CURRENT DUTIES IN RESOLVING DISPUTES
There is an explicit duty on lawyers to make clients aware of alternatives to a fully contested
adjudication of disputes where, in the lawyer’s judgment, such alternatives are reasonably
available.75 Short of explicit duties, rules of court, contractual terms and the trend of authority
have created an environment in which lawyers have an implied duty with regard to trying to
resolve disputes.76 This duty arises in a number of ways. Firstly, there are costs consequences for
not engaging in ADR, not engaging in ADR in good faith, delay in participation or ‘pulling out.’77
An adverse costs order is usually made against a party to the litigation, but courts also have wide
70
As the relationship between lawyer and client is a fiduciary one: Nocton v Lord Ashburton [1919] AC 492; Phipps v Boardman [1967] 2
AC 46; [1966] 3 All ER 721; Clark Boyce v Mouat [1994] 1 AC 428; [1994] 4 All ER 268; Maguire v Makaronis (1997) 188 CLR 449.
71
Arising from a broad view of ‘best interests’ of the client, what may almost be called the duty to mediate even before the dispute escalates
into litigation (the reality is that most judges now will ask the parties at the first directions hearing why they have not been to mediation and
will send them anyway), the fiduciary nature of the lawyer/client relationship, a duty of care, an ‘ethic of care’ too in some situations driven
by demand for more of a voice in the process: as to ‘ethic of care’ and ‘demand for a voice’ see Susan Daicoff, ‘Lawyer, be Thyself: An
Empirical Investigation of the Relationship between the Ethic of Care, the Feeling Decision-Making Preference, and Lawyer Well-Being’
(2008) 16 Virginia Journal of Social Policy and the Law 87.
72
Stipanowich, ‘Dialogue’ above n 11, 1191.
73
Stipanowich, ‘Dialogue’ above n 11, 1210-1211; the American Bar Association first published a major study on ‘the skill of counselling a
client about litigation and alternative processes in other dispute resolution forums together with the ability to take part (sic) in them’: Archie
Zariski, ‘Lawyers and Dispute Resolution: What Do They Think And Know (And Think They Know)? Finding Out Through Survey
Research’ [1997] Murdoch University Electronic Journal of Law 18, [4]. <http://www5.austlii.edu.au/au/journals/MurUEJL/1997/18.html>
74
Stipanowich, above n 11, 1211.
75
ACSR rule 7.2.
76
This argument will be developed further below where the implied term issue is said to support an existing duty on lawyers to try to restore
relationships, where possible.
77
The High Court is yet to define ‘good faith’ but there a number of authorities usefully gathered together by Tania Sourdin, "Good Faith,
Bad Faith? Making an Effort in Dispute Resolution" (2012) Good Faith Paper 1; see also Aiton Australia Pty Ltd v Transfield Pty Ltd [1999]
NSWSC 996. Boulle points to other authorities showing what he calls a ‘relatively benign judicial attitude’ towards lawyer conduct in a
mediation setting, but two of the four cases he cites were judgments of inferior courts of record (District Court of Queensland and Northern
Territory) and the other two, from 2002 (WA Supreme Court and Queens Bench), would not be persuasive now given that the prevailing
judicial attitude in Australia, the United Kingdom and the United States eschews a lawyer and a party failing to attend mediation or to attend
in good faith very seriously. These decisions are now out of step with later authority; see for example Dunnett v Railtrack plc [2002] 2 All
ER 850 and People’s Mortgage Corporation v Kan Bankers Surety Co 62 F App’x 232 (10th Cir 2003), respectively. For an extensive
review of the authorities and the situations in which courts have in effect fined a defaulting party with regard to their conduct concerning
participation in court-annexed ADR, see Blake et al, above n 19, Ch 8.
9
powers to make a personal order for costs against a third party, including lawyers.78 Secondly,
courts now expect litigants to have attempted ADR or their lawyers to inform the court of the
suitability of the dispute to ADR and the prospects of resolution using ADR. Thirdly, most
courts have rules requiring proceedings to be referred to ADR as a precondition to obtaining a
hearing date.79 Lawyers now routinely expect disputes to be mediated during the proceedings. In
most cases, mediation has been tried once before proceedings were filed.80 Many cases that do
not settle during mediation eventually settle as issues have been narrowed. This may explain why
courts take a justifiably adverse view of parties who do not take part, or subvert or pull out of it.81
1.8
LAWYERS’ DUTY TO THE COURT
In the common law system, lawyers have a paramount duty to the court and the administration
of justice. This duty is enshrined in lawyers’ conduct rules.82 Case management is an integral part
of the court system and underpinning case management is ADR. As officers of the court then,
lawyers have an inescapable duty to further and advance the interests of justice, an integral aim of
which for at least the last 30 years has been the non-judicial resolution of disputes (that is, dispute
resolution without the need for a trial and a court imposed judgment).
1.9
OBJECTIVES
This paper will examine this issue of lawyers' duty in the context of mediation in Australia,83 with
some analysis from elsewhere, and only where a lawyer is retained to act for a party to a dispute.
The duty on a lawyer acting as an ADR practitioner, that is, as a mediator, for example, will not
be the concern of this paper. Whilst lawyers acting as ADR practitioners are also subject to the
same professional duties as other lawyers, they are also subject to different ethical and
professional standards regimes and legislation, which are beyond the scope of this paper.
78
For example, section 99 of the Civil Procedure Act 2005 (NSW).
79
ADR serves the overriding purpose of case management. ADR referral is mandated in most courts. See Parts 4 and 5 of the Civil
Procedure Act 2005 (NSW); Part 20 of the Uniform Civil Procedure Rules; New South Wales Supreme Court Practice Note SC Gen 6;
court-annexed mediation has been ‘an integral part of the Court’s adjudicative processes’ since 2000: James Spigelman, ‘Mediation and the
Court’ (2001) 39 (2) Law Society Journal 63.
80
Campbell Bridge, ‘Comparative ADR In The Asia-Pacific – Developments in Mediation in Australia’. Paper presented at the 5Cs of ADR
Alternative Dispute Resolution Conference, Singapore, 4-5 October 2012 quoted in Harman, above n 17, 9.
81
Dunnett v Railtrack plc [2002] 2 All ER 850 is the prime example. The ADR session rejected was after trial but before appeal; Railtrack
succeeded on appeal, albeit on a technicality, but was deprived of its costs of the appeal for failing to participate in ADR. Other authorities
making good this proposition are referred to below.
82
83
ASCR rule 3.1.
Given that it is the main form of ADR, especially in the Australian State and Territory District and Supreme Courts.
10
2
CHAPTER TWO: DISPUTE RESOLUTION
2.1
RISE OF ADR
ADR’s roots lie in the well-tilled soils of ‘community and neighbourhood mediation schemes’
and family law conciliation initiatives in the United States in the 1970s.84 Lawyers can take no
credit for initiating it. ADR was not something lawyers taught, but caught.85 The main rationale
for ADR lay in the inability of the judicial system to deal with non-legal needs and issues.
Another rationale for ADR was harm people sustained which was caused by litigation.86 In ‘The
Litigant-Patient: Mental Health Consequences of Civil Litigation,’ Larry H. Strasburger addresses
the psychological consequences of litigation and refers to the term coined by Gutheil, 'critogenic
harm'.87 This term refers to the emotional harm resulting from the litigation process.88 The
‘trauma’ that their litigation clients experience throughout and after court cases is a topic that
most litigation lawyers would prefer to avoid. This is, then, an important area to get right and one
calling for an increased awareness by lawyers89 to ‘turn their thinking to being conciliators.’90
Like any other multidisciplinary professional practice, lawyers will increasingly need to use other
professionals, such as mental health practitioners, in order to get their clients through and survive
the process. There is little point in lawyers telling their clients that they will be ‘empowered’ by
litigation if all litigation is really doing is traumatizing them.91 As Strasburger rightly points out,
the legal process can be empowering and enable an individual to stand up for her or himself, and
hold those who have wronged them responsible.92 These are laudable aspects of the court system.
84
Specifically, juvenile justice. Cyril Glasser and Simon Roberts, ‘Dispute Resolution: Civil Justice and Its Alternatives’ (1993) 56 Modern
Law Review 277, 277-278; the same community trend may be seen in the mediation referral provisions of the Community Justice Centre Act
1983 (NSW); see also Nadia Alexander, ‘Global Trends in Mediation: Riding the Third Wave’ in Nadia Alexander (ed) Global Trends in
Mediation (2nd ed, 2006), Ch 1.
85
‘Lawyers did not generally take a leading part in these initiatives’: Glasser & Roberts, above n 85, 277-278.
86
Edward J. Hickling, Edward B. Blanchard & Matthew T. Hickling, ‘The Psychological Impact of Litigation: Compensation Neurosis,
Malingering, PTSD, Secondary Traumatization, and Other Lessons from MVAS’ (2006) 55 De Paul Law Review 617 (harm generally stems
from the individuality of litigants being stripped away with litigation’s rights focus); this is the thrust of Strasburger’s article, below n 87.
87
Larry H. Strasburger, ‘The Litigant-Patient: Mental Health Consequences of Civil Litigation,’ (1999) 27 Journal of American Academy of
Psychiatry Law 203.
88
Strasburger, above n 88, 206. See also Nsisong Anthony Udoh and Kudirat Bimbo Sanni, ‘Supplanting the venom of litigation with
alternative dispute resolution: the role of counsellors and guidance professionals’ (2015) 43 British Journal of Guidance & Counselling 518.
89
It is something that may help lawyers turn from what Menkel-Meadow calls the ‘culture of adversarialism’: Carrie Menkel-Meadow, ‘The
Lawyer as Problem Solver and Third-Party Neutral: Creativity and Non-partisanship in Lawyering’ (1999) 72 Temple Law Review 785, 788.
90
William R Ide III, ‘Summoning Our Resolve - Alternative Dispute Resolution Aims for Settlement without Litigation’ (1993) 79 American
Bar Association Journal 8.
91
Strasburger, above n 87, 205-7.
92
Strasburger, above n 87, 206.
11
But money, in the form of damages, is not always the ‘poultice’ that it is cracked-up to be.93
Damages can only ever achieve so much.94 This is not a failing of the common law system itself.
but recognition, as Sackville has argued over access to justice, that courts can only do so much.95
In a personal injuries context, for example, there is no getting around the fact that almost
invariably proceedings need to be filed in order to protect limitation periods. Strasburger points
out that this often results in a personal injuries litigant having to come to terms very quickly with
the fact that they are now a plaintiff in a civil lawsuit, which is often not only something beyond
which they could ever have imagined seeing themselves being, but they also need to come to
terms with the public nature of litigation and the lack of control over the boundaries and privacy
which most people accept as a given.96 Although Strasburger was writing in 1999, and was
justifiably doubtful that litigation rates would ever decrease, many of the issues Strasburger raises,
particularly about litigation as a process, are as relevant to fully contested litigation now as they
are to the ADR context as well97. ADR, with or without related litigation on foot, is just as much
a process.98 Most ADR practitioners will have protocols that will, quite properly, require the
exchange of information such as outlines of facts, chronologies and position statements.99 Most
ADR practitioners also require separate preliminary meetings with each disputant and their legal
team. Much needs to be done and much is required of people who are in dispute, even before
mediation, for example, gets underway. It is just as much a process for someone unused to this
kind of formal dispute resolution setting. Many of the comments Strasburger makes with regard
to litigation stress apply to ADR. Although almost all ADR is private, there is still the perceived
risk, despite confidentiality, non-disclosure and privilege obligations, of personal information
being disclosed and subjected to scrutiny.100
93
Strasburger, above n 87, 205.
94
As Goldman rightly says, there is a need 'to be cognizant of non-monetary considerations that might be important to the plaintiff, like an
apology from the laughing employee': William Goldman, 'The Lawyer's Philosophical Map' (2001) 6 Harvard Negotiation Law Review 145,
175. See also Tamara Relis, 'It's Not about the Money: A Theory of Misconceptions of Plaintiffs' Litigation Aims' (2007) 68 University of
Pittsburgh Law Review701: it may be something as simple as 'plaintiffs' desires to obtain acknowledgment of error': 701.
95
Sackville, above n 41, 209-223.
96
Strasburger, above n 87, 207.
97
Strasburger, above n 87, 210 (the ever increasing frequency of lawsuits has no end in sight).
98
The editors of Butterworths Australian Legal Dictionary agree that ADR is a ‘process’ but their description of it as a ‘decision making’
one ‘outside the usual court-based litigation model’, is not one I agree with: ‘ADR The decision making process by which matters are
resolved outside the usual court-based litigation model’: Nygh and Butt, Butterworths Australian Legal Dictionary, above n 65, 50. It may
not necessarily be a ‘decision making process’ and very often ADR takes place in the context of the ‘usual court-based litigation’ (case
management) framework, to which it is integral.
99
Boulle, Mediation, above n 33, 229-231.
100
Strasburger, above n 87, 207.
12
Strasburger makes an excellent point about ‘reality-testing’ whether the position held by a
disputant with regard to these matters is legitimate or groundless.101 Lawyers can help their clients
with this either by giving them advice on likely outcomes or referring their clients to a psychiatrist
or psychologist to reinforce the message that although anxiety is a natural response to dispute
resolution, the client will benefit from this process, even if a resolution is or cannot achieved.102
One crucial part of being a lawyer is to put clients in a crisis at ease.103
2.2
BENEFITS OF ADR
The main benefits of ADR are speed, low cost and a non-binary, private outcome.104 There is no
doubt that the commencement of legal proceedings has a deleterious effect on relationships.105
Conversely, ADR ‘takes the heat’ out of disputes before costs, emotions and positional posturing
get out of hand, and past the point of no return. When a dispute is referred to ADR, even if
underlying proceedings have been commenced, the dispute may not have escalated to a point
where the compulsive powers of the state need to be invoked and a third party adjudicator
allocated to hear evidence and submissions and determine the factual and legal issues between
them. ADR involves more wide-ranging exploration of underlying causes of a particular dispute.
ADR, therefore, encompasses legal and non-legal issues between the parties and can address nonlegal issues in a way that a judicial determination cannot.106 Because non-legal issues can be aired
as people feel heard, feelings having been expressed and narrative having been listened to, it is
possible for parties to ‘drill-down’ deeper into the pathology of their dispute.107 ADR leads to a
101
Strasburger, above n 87, 209.
102
Strasburger, above n 87, 209.
103
Michael King, above n 8, 1118 ('Therapeutic jurisprudence and restorative justice suggest that, in particular contexts of legal problemsolving, processes that take into account the problem's emotional dimensions and that involve professionals exercising skills in perceiving,
understanding and handling their own and the parties' emotions are important in promoting the problem's comprehensive resolution').
104
That is, not imposed nor in any sense is the dispute or the parties’ role in the events giving rise to them somehow ‘judged’.
105
Gollan, above n 60, 325-6 (citing a mediator’s response that litigation made repairing a ruptured relationship like ‘reattaching a limb’ and
a Boston study which found that where proceedings were commenced, the disputants were not interested in a repaired relationship: Marc
Galanter, ‘Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) About Our Allegedly Contentious
and Litigious Society’ (1983) 31 University of California Los Angeles Law Review 2).
106
It has been said that it is this focus on ‘emotional intelligence’ that is lacking in the court system: King, Michael, Freiberg, Arie and
Reinhardt, Greg, ‘Introduction’ (2011) 37 Monash University Law Review 1, 5.
107
‘…without narration there is no rational explanation of the past…’: John Patrick Diggins in Gordon S. Wood, The Purpose of the Past
(Penguin, 2008), 59. This is not to suggest that storytelling is merely ‘utilitarian’ in the sense that just because ‘uncovering underlying
patterns in history and human behaviour …might help in understanding the past and managing the future, or even the present’: Barbara W.
Tuchman, The March of Folly: From Troy to Vietnam (Knopf, 1984) cited in Wood, The Purpose of the Past, 63. When people are allowed
to tell their stories, it is cathartic and therapeutic, and, therefore, beneficial. There is a lot to people having the ‘freedom’ and the safety in
which to ‘say their piece’: King, ‘Justice and Harmony’, 95-96. As to whether such a narrative, conciliatory approach is utilitarian, see
Warren Lehman, ‘The Pursuit of a Client’s Interests’ (1979) 77 Michigan Law Review 1078, 1084.
13
deeper understanding of the causes of conflict and empowers the parties to take a far more
proactive role in the management and resolution of their dispute.108
Because of the way ADR and litigation seek to achieve the same objective are completely
different, parties who have been through an ADR process often feel that their voice has been
heard much more so than litigation, where lawyers translate the dispute into the evidence and the
issues that are only 'relevant', and into legal categories and relief which bear little or no relation to
the underlying and usually sidelined non-legal problems exercising the minds of the disputants.109
2.3
CURRENT APPROACH TO ADR IN AUSTRALIA
The current approach to ADR in Australia is a mix of court-annexed and private facilitation.110
Private ADR occurs where parties to a dispute share the cost of an independent facilitator to help
them identify issues, exchange positions and help the parties come to an accommodation. The
aim here is to reach a compromise without adjudicating on the merits of the dispute.111 It is
possible for private mediation to occur regardless of whether there is pending litigation. At times
the two work well together as the risk of a looming hearing date tends to focus the parties' minds.
This approach takes place both within and outside of the legal system and does not always
involve lawyers. The most common forms of ADR in Australia are mediation, facilitation,
arbitration, med-arb (so-called 'hybrid' or combined approaches) as well as forms of neutral
evaluation, non-binding evaluation and informal settlement conference.112 Of these, mediation is
the most common form of ADR in Australia and is used before litigation has commenced, where
litigation has been threatened as well as after proceedings have been commenced. Mediation is
often used pursuant to court and tribunal rules.113 In most Australian jurisdictions, the courts
(backed up by overwhelming judicial support) mandate referral to mediation, even where parties
108
Menkel-Meadow, above n 21, 2691.
109
It was Judge Learned Hand who said that it was a rare litigant who recognised their dispute in court; he also said that, ‘As a litigant, I
should dread a lawsuit beyond almost anything else short of sickness and death.’ In an observation in ‘Lawyer, Know Thyself: A Review of
Empirical Research on Attorney Attributes Bearing on Professionalism’ (1997) 46 American University Law Review 1337, Susan Daicoff
observed that lawyers' rational, unemotional personalities ‘might explain why lawyers and their clients at times have trouble interacting with
and relating to each other.’ How often clients must leave lawyer's offices and court rooms feeling like their lawyer did not listen and as
though the lawyer regarded all of the non-legal issues (what might be called 'heart issues') standing in the way of resolution as irrelevant
distractions.
110
Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non-Adversarial Justice (Federation, 2014), 112.
111
King et al, above n 110, 112 (The role of the facilitative mediator is limited to process intervention).
112
The informal settlement conference has been particularly successful in the New South Wales Supreme Court, Equity Division in
Succession Act 2006 (NSW) [formerly the Family Provision Act 1982 (NSW)] claims with regard to contested deceased estates where the net
distributable estate is less than $500,000.00 which ‘reduced the number of cases going to the court-annexed mediation program’: see New
South Wales Supreme Court Annual Review 2015, 32, 54 (n 3).
113
So-called 'court-annexed' mediation: most Australian courts and tribunals have court-annexed ADR and mediation is the most common.
14
do not wish to mediate so that some kind of consensus might result.114 Leaving esoteric
objections aside, whatever may be said of compulsion, it works.115 Consensus often eventuates.116
2.4
USE OF ADR IN AUSTRALIA
It is difficult to say whether outcomes reached in ADR are better than a fully adjudicated one as
it depends on the nature of the dispute. For example, there is a public interest in test case
litigation and where members of a large class of people have suffered injury. In these situations,
there is a wider benefit from the public nature of a court judgment, where rights may be
vindicated and wrongdoers (such as tortfeasors) punished, compared to the private and
confidential nature of ADR, where public vindication and the precedential value of a judgment
are not possible.117 In general though, ADR encompasses legal and non-legal issues and it can,
therefore, address and resolve the non-legal aspects of a dispute more satisfactorily than courts.118
Industry specific mediation has also been a success with the major banks, the Australian Tax
Office and a number of Ombudsman schemes assisting their clients with ongoing
relationships.119
2.5
ADVANTAGES OF ADR
ADR is fraction of the cost of litigation, it saves time and it saves people the stress of preparation
and uncertainty of litigation. The cost of representation at a mediation session may be the only
114
Hooper Baillie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194 at [206] per Giles J.
115
A number of commentators, led by Owen Fiss, criticise ADR for 'pressuring' parties into settling their cases, question ADR's underlying
assumptions, argue that ADR is just a way for courts to clear their dockets as poorer litigants are forced to accept a settlement as litigants
with deeper pockets can impose expenses on them, such as discovery: Owen M Fiss, ‘Against Settlement’ (1984) 93 Yale Law Journal 10731075. Fiss sees ADR as 'capitulation to the conditions of mass society and should be neither encouraged nor praised.' (1075); his point that
important cases concerning issues of wider social importance settling because of economic inequality in society has some force, but a
settlement on terms parties can live with - both parties - is far better than the uncertainty of a trial and judgment, and appeals: John Lande,
‘Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs’ (2002) 50 University
of California Los Angeles Law Review. 69, 86. Fiss rails against what he sees as the inherent unfairness of the civil justice system, but his
argument is more ideological than practical. At some points, Fiss' argument sounds like a Marxist critique of the common law system rather
an analysis of practicalities and realities of weighing the risks inherent in litigated outcomes against ‘buying the risk’ and achieving certainty
through ADR.
116
There is a compelling argument for compulsion as it addresses any power imbalance between disputants as well as obdurate refusal by
one party to litigation to participate in ADR which, in this era, is contrary to the ‘overriding purpose’ of case management: eg see section
56(1) of the Civil Procedure Act 2005 (NSW).
117
In representative actions, however, courts are taking an increasingly supervisory role in relation to settlements to ensure that they are
reasonable and fair to the class compared to say the return to the litigation funders and the lawyers: Darwalla Milling Co Pty Ltd v Hoffman
La Roche Ltd & Ors (2006) 236 ALR 322 [41]; Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; 236 FLR 1;
Peterson v Merck Sharpe& Dohme (Aust) Pty Ltd (No 6) [2013] FCA 447; Camilleri v The Trust Company (Nominees) Limited [2015] FCA
1468 (fairness between claimants as to how settlement money is shared); Earglow Pty Ltd v Newcrest Mining Ltd [2016] FCA 1433 (Murphy
J adopted a fixed percentage); see also Michael Legg, 'Judge's Role in Settlement of Representative Proceedings: Lessons From United States
Class Actions' (2004) 78 Australian Law Journal 58.
118
The overwhelming thrust of the collaborative or therapeutic ADR literature, with the only exception of Fiss, supports this proposition.
119
One example is the telecommunications industry Ombudsman. This reflects a trend elsewhere to mediate industry specific disputes
especially where they are low value, high volume disputes with customers. It should be pointed out that ODR and EDR are not suited to
relationship restoration. The sine qua non of restorative justice in the ADR context is face-to-face meetings to re-establish any lost trust.
15
expense where publicly funded ADR programs exist. Where a private ADR session is held, the
parties usually share the cost of the ADR practitioner and the hiring of a venue and facilities;
these costs can be prohibitively expensive. If the dispute is not settled using ADR and proceeds
to litigation, it has been argued that ADR is, on one view, an additional and unnecessary cost.
Depending on the nature of the dispute, there are some cases where ADR will not save time,
particularly in urgent matters where an injunction is required or a time bar under a statute of
limitations needs urgent protection (by the filing of proceedings) or proceedings need to be filed
because the statute provides strict time frames in which to do so (eg proceedings to set aside a
winding up notice or the extension of a caveat by court order). There is no question that if urgent
steps need to be taken to preserve rights or the status quo, such steps ought to be taken.120
2.6
CATHARSIS
In English, ‘catharsis’121 has come to mean some kind of experience, process or series of events,
usually involving some form of suffering, through and as a result of which personal growth
occurs which paves the way for positive future outcomes. Such personal growth might be
spiritual, for example. It may also be an awareness of an ability to compromise rather than living
and dealing with conflict combatively. ADR is about managing values and aligning expectations.
We can experience catharsis corporately and personally as societies and as individuals. Few come
through serious forms of conflict unscathed. There are, for example, few winners in family law,
irrespective of the outcome. Most people emerge from conflict with a sense of having been
crushed by it or having endured and ultimately conquered something. Regrettably, all too often,
many people have no choice other than to endure conflict until a solution or outside help
becomes available. Often in modern Western societies, that outside help comes in the shape of a
lawyer who can help to vindicate or prosecute a right or help manage conflict. The best solution
to conflict resolution has been to nip conflict in the bud through alternative dispute resolution.
With case management and dispute resolution now very much part of the furniture of the
Australian legal system, lawyers, as officers of the court, have duties to advance these twin means
120
Very often, obtaining an injunction may be the first step towards a dispute being resolved through ADR or, conversely, if an injunction is
not obtained, whatever rights a party thought they had to submit to ADR may be prejudiced beyond retrieval. Taking steps to maintain the
status quo is vital for ADR to be effective. At times, parties must simply act as not doing so may result in their rights being so prejudiced that
any bargaining strength they may have had in ADR evaporates along with them. I am not advocating some kind of ‘pacifist’ approach to
ADR. Rights need to be preserved, not sat on or ignored to a party’s legal peril.
121
The etymology of which is Greek from the verb, kαθαρίζω (transliteration: katharitzo) meaning to purify or to make clean: Warren C
Trenchard, A Concise Dictionary of New Testament Greek (Cambridge University Press, 2003) 79.
16
of achieving the interests of justice, namely the ‘just, quick and cheap’ mandate, which has
become the hallmark of what courts expect of those involved in litigation and those representing
them. But in a rapidly changing legal environment, it may be that lawyers now have wider duties
than this. Lawyers need to be mindful of the context in which their clients’ disputes occur. Very
often nowadays, clients’ disputes are not taking place in one-off, never-to-be-repeated
circumstances, but in the context of ongoing commercial, personal and/or regulatory
relationships where it is in both parties’ interests to resolve the instant and potential future
disputes. There is also a strong societal interest in disputants learning from conflict and gaining
insight into how to better manage conflict and avoid disputes in the future. The need to consider
whether a duty to help clients restore relationships ought to be imposed on lawyers might serve
to undergird a competent and engaging framework for opportunities to move relationships beset
by conflict forward. Such a duty may be said to be foundational for avoiding future disputes.
Everyone has an interest in restoring and re-establishing a relationship if it really matters to them.
2.7
THE IMPORTANCE OF ‘BEING HEARD’
The cause of many disputes often stem from the simple complaint that a party felt that they were
‘misunderstood’ or ‘not heard’. Amongst the many benefits of ADR122, is that it also provides a
forum where parties can have their say and ultimately, feel like they have ‘been heard’. There is
enormous benefit to people growing and acquiring an awareness of the party they have played in
a dispute as a result of their participation in the ADR process because as much as they want their
voice to be heard, the necessary corollary is that they listen to the other party’s story. Mayer puts
this need this way: ‘Perhaps our most fundamental need in conflict is to be heard in a powerful,
meaningful way by people who matter to us, for example those with whom we are in conflict...’123
Mayer astutely observes that often the main rationale behind initiating conflict is ‘to be heard’.124
3
CHAPTER THREE: ADR ADVOCATES
3.1
LAWYERS AS ADR ADVOCATES IN AUSTRALIA
Lawyers’ main role in ADR falls into three categories: (i) advocate,125 (ii) conflict coach126 and (iii)
ADR practitioner, such as a mediator. In discussing the role of lawyers in ADR, the approach of
122
See Section 2.2
123
Mayer, above n 62, 153.
124
Mayer, above n 62, 153.
In the sense of a lawyer who appears on behalf of a party at a mediation, for example.
125
17
the legal profession to ADR has undergone a revolution in the last 30 years. Lawyers’ attitudes
have moved away from regarding ADR as a passing fad,127 where court trials were still the
predominant mechanism of resolving disputes, to the situation now, where ADR is deeply
embedded within the psyche of lawyers and the community, and the prospect of a trial where
parties will be legally represented and the court will deliver a final and conclusive judgment much
less likely. As has been said, ADR is now well and truly here to stay. The curricula of legal
education, at a tertiary and continuing professional development level, contain basic and
advanced ADR components. Australian lawyers are generally well versed in ADR. There is still a
tension though between the lawyer's financial interest in contentious matters developing into
more than a mediation. The longer a dispute goes on the more the fees. It is a very real conflict.128
3.2
DUTY TO ENGAGE IN DISPUTE RESOLUTION ALTERNATIVES
The important duty which is mandatory at present is one requiring lawyers in almost all States
and Territories in Australia is to inform clients (or the solicitor, if the lawyer is a barrister) about
alternatives to the fully contested adjudication of cases, including disputes which are not yet the
subject of proceedings, so that clients can make decisions about their ‘best interests’ with regard
to resolving the dispute.129 The ASCR model rules are enshrined in the legal and professional
conduct rules of New South Wales, Victoria, Queensland and South Australia.130
There is no equivalent duty at common law. The law does, however, impose a duty of honesty on
lawyers, and lawyers are required to act in their client’s best interests. These duties arise out of the
fiduciary nature of the lawyer-client relationship, which is one of trust and confidence. It could
be argued that duty to advise a client of ADR alternatives arises out of both the trust and
confidence of the lawyer-client relationship and that a client’s best interests include trying to find
126
‘As people generally are unable to change other people’s behaviour, coaching assists them to work out strategies that they can use in
dealing with the person with whom they are in dispute. … Conflict management coaching can be useful in workplace disputes, business
dealings, family disputes and other areas where there are interpersonal relationships. It may be a step on the way to a mediation or a stand
alone activity to assist a person generally gain more competence in managing their conflicts’: Wedge, ‘Conflict Management Coaching’,
Proctor, February 2015, 28.
127
Either a passing fad or wishful thinking that the burgeoning civil lists would continue to translate into vast fees being earned in a growing
litigation environment. The halcyon days of litigation, especially in Australia, are over, and law firms and barristers have realised that they
must embrace ADR and become trained as mediators so that their litigation skills continue to be useful, albeit in another context.
128
Which is why some advocate the ‘unbundling’of legal services to avoid potential conflicts of interest: Maya Steinitz, ‘Whose Claim Is
This Anyway? Third Party Litigation Funding (2010-2011) 95 Minnesota Law Review 1268, 1322; Paul Lippe, Welcome to the Future:
Revolutions and Other Models of Change, AMLAW Daily, July 6, 2009, <http://amlawdaily.typepad.com/amlawdaily/2009/07/welcome-tothe-future-revolutions-and-other-models-of- change.html> quoted in Heather Miller, Don’t Just Check ‘Yes’ or ‘No’: The Need for Broader
Consideration of Outside Investment in the Law’ (2010) University of Illinois Law Review 311, 325.
129
ASCR [7.2].
130
Listed at 50-51 below are the various pieces of delegated State legislation adopting the Law Council of Australia’s ASCR 2015 version
and thereby adopting, so far as those States are concerned, a uniform standard of conduct, including with regard to advising clients of ADR.
18
a way to resolve the dispute without the attendant legal costs and risks of litigation. It may also be
negligent to fail to warn a client about ADR alternatives given that a large number of disputes
settle as a result of ADR and the often-crippling costs of litigation could well be avoided,
especially in circumstances where a litigated outcome is uncertain. It may be argued that a lawyer
now owes a client a duty of care to avoid such costs and risks, and failure to warn could sound in
the lawyer’s liability in negligence for those costs131 as well as any adverse costs orders for failing
to engage in court-annexed ADR, in good faith, or at all.132
3.3
CONFLICTING DUTIES
A lawyer’s paramount duty is always first to the court and to the administration of justice.133 The
paramount duty also includes a duty of honesty and candour. The paramount duty, therefore,
cannot conflict with a lawyer’s duty to a client. A lawyer’s duty to a client is to ensure that the
case put to the court is truthful. Presenting a false case can never be in any client’s best interests.
The administration of justice necessarily involves scarce judicial resources being allocated to the
hearing and determination of proceedings. ADR came about and assumed prominence because
court systems worldwide were inundated with a caseload that courts did not have the judicial
resources to deal with and dispose of in a timely fashion. The rise of case management in most
common law legal systems was aimed at reducing backlogs in court lists and reducing delay in
disposal times of cases but case management could never achieve just quick outcomes alone.
ADR was a necessary consequence of case management as it introduced a form of judicial triage
to dockets. ADR has reduced court backlogs in civil dockets and has brought about a situation in
which the overwhelming majority of cases settle after referral to ADR, usually mediation. By
comparison, only a small minority of cases proceeds to trial and requires judicial determination.134
It follows that lawyer’s duties to the court to advance the aims of case management must be
consistent with their duties to their clients. After all, a large number of cases settle, a large
number of litigants are saved vast amounts of money they would otherwise incur in legal costs,
and even if ADR fails, a large number of cases settle following ADR and before trial. It may be
that those cases that do proceed to trial, where ADR has failed, should go to trial. As has been
131
Breger, above n 28, 449-450 (Just as a doctor is liable for his failure to explain alternative, available treatments, so, theoretically, could an
attorney be liable for his failure to explain alternative, available resolutions.).
132
Capolingua v Phylum Pty Ltd (as Trustee for the Gennoe Family Trust) (1991) 5 WAR 137, 140 per Ipp J.
133
ASCR [3.1].
134
Figures 3-4 below show how successful ADR within the context of case management has been in the NSW District and Supreme Courts.
19
rightly said, ADR takes place in the shadow of the trial. The prospect of all the uncertainty, cost
and risk of a full trial should serve as a ‘goad’ to prompt litigants into reality.
The lawyer’s duty to the court to further case management aims is consistent with their duties to
their client as clients are not forced to settle even where ADR is court-mandated (compulsory).
Sometimes, however, lawyers and courts should help ‘save people from themselves’ because
litigation is stressful and people under stress do not always act rationally.
Stipanowich and Daicoff both see the ‘hegemony of lawyers’ as a potential problem for ADR’s
development.135 Daicoff talks about ‘inherent lawyer attributes’ being deleterious to the aims of
ADR.136 Clearly, all this needs to be overcome where there is resistance. It is clear that, at least in
Australia, ADR is now entrenched and an integral part of the court system.137
4
CHAPTER FOUR: A DUTY TO MEDIATE OR RESTORE
4.1
A DUTY TO TRY TO RESTORE RELATIONSHIPS IN AUSTRALIA
4.1.1
Express duty
There is no express duty on lawyers in statute or case law to try to restore relationships in
Australia or internationally. That lawyers may be said to have a duty to try to restore relations
where such an outcome is appropriate or desirable makes sense when you consider that it could
never be said to be in a client’s interests to keep engaging in the same kind of conduct that gave
rise to previous disputes. They would have learnt nothing from the experience otherwise and, in
failing to help develop a sense of awareness of these issues in the client’s mind, a lawyer is in
effect ‘enabling’ the client to engage in vexatious litigation or, at least, an avoidable multiplicity of
potential ‘satellite’ disputes.
It is part of a lawyer’s duty to explore and weigh up a client’s ‘best interests'.138 This will involve
an examination of legal and non-legal issues such as relational issues and the importance of such
issues in the overall context of the dispute in which the lawyer has been retained to act. Whether
135
Daicoff, ‘Leopards’; Stipanowich, ‘Managing Construction Conflict’, above n 9.
136
Daicoff, 548.
137
Bergin; Bridge; Harman, above n 17.
138
Australian Solicitors Conduct Rules, Rule 4.1.1.
20
clients ought to litigate depends on the case and the nature of the dispute. Some people need to,
and should, have their day in court; this is a basic right that should never be curtailed.139
A lawyer’s duty is to facilitate case management objectives.140 The content of this duty has
received the clearest judicial attention. The former Chief Judge in Common Law of the NSW
Supreme Court, Justice McClennan has provided judicial guidance on the content of this duty. In
NSW Couriers Pty Limited v Newman141 his Honour said that:
All practitioners … should be mindful, at every stage of proceedings, of the possibility that
direct negotiation including formal and informal mediation might bring resolution of their
clients’ problems. Proper discharge of a practitioner’s obligations … requires the
practitioner to inform the client of the possibility of negotiation and to raise the possibility
with the opposing parties’ representatives, before significant costs have been incurred …
This duty reflects changes to professional conduct rules142 and also sections 56-60 of the CPA.143
The duty to advise on alternatives in the sense as it is enshrined in lawyer’s practice rules is only
fairly recent (NSW and Victoria in 2015, which accounts for majority of lawyers in Australia).
This duty (ASCR [7.2]) is obviously a positive development. It must be said that even before this
duty became enshrined, experienced prudent lawyers, as a matter of good practice, were already
considering alternatives to litigation with clients. The evidence of increasing participation rates in
ADR and the number of cases settling speaks for themselves. The current duty reflects an overall
movement in the changing development of legal practice but there is more to do in respect of the
professional duty. It is necessary, however, for the duty to be more proscriptive about the ADR
process that will be used, what approach will be adopted and the end result that is to be achieved.
139
Owen Fiss, ‘Against Settlement’ above n 117.
140
For a detailed and clear summary of the ‘overriding purpose’ obligations on lawyers and courts users federally and at State level, see
Michael Legg, Case Management and Complex Civil Litigation (Federation, 2011), 46-48.
141
[2002] NSWSC 1172.
142
ACSR Rules 3.1 (paramount duty to the court), 4.1.1 (act in clients’ best interests) and 7.2 (advise clients of ADR alternatives), inter alia.
143
As to the duties of a lawyer in New South Wales now, see McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308, [26]
where Allsop P said: The operation of the Civil Procedure Act, ss 56-60 has brought about important changes to the conduct of civil
litigation in this State. To a significant degree those provisions enshrined many of the developments in case management and the approach to
litigation over the previous 20-30 years in this country. They now have statutory form. They are, however, a clear statutory watershed. That
statutory form comprises the over-riding purpose: s 56, the fulfilment of which binds the Court (s 56(2)), the parties (s 56(3)) and legal
advisers (s 56(4)). That over-riding purpose is the 'just, quick and cheap resolution of the real issues in the proceedings. (emphasis added)
21
4.1.2
Implied duty
As well as being an express duty to the court, as McClennan CJ in CL held, it may also be argued
that a duty arises by implication. There are a number of areas where implied duties arise and they
are no less real or actionable by reason of their mere implication. In employment law, for
example, an employee may not have a written contract of employment, but there are implied
duties of honesty, for example (ie. a duty not to steal from an employer and to comply with
lawful instructions). The law implies duties into a range of relationships. Professional
relationships, such as between a lawyer and client, comprise the retainer or terms of engagement.
The Law Societies in most jurisdictions of Australia, for example, have developed a set of rules
for their member lawyers, which are imported or implied into the retainer. Breach of them has a
number of consequences, not all of which are contractual. Some are disciplinary. Others may
sound in damages. In a negligence suit, professional rules also provide courts with guidance, amid
a matrix of factors, about the parameters of prudent professional conduct. Lawyers are already
subject to a number of implied terms in the context of their retainer. One such implied term is
the obligation to keep a client's matters confidential, sometimes even after the retainer has come
to an end. Another is to act in the client's best interests. These terms are also mirrored in
legislation, professional rules and now clear authority.
In light of these developments, a case can be made for an implied ethical or contractual duty on
lawyers of the kind contended for as the following is now clear. Litigants144 and their lawyers run
the risk of an adverse costs order if they do not engage in ADR, even if the client wins. ADR is
integral to case management. If a lawyer does not advise their client about ADR options, they
potentially (if not, actually) lose the chance to engage in ADR and resolve their dispute with
minimal costs and could make a claim against their lawyer for their loss (namely, the avoidable
legal costs of any ensuing litigation).145 Lawyers' professional conduct rules now specify that
lawyers must advise their clients about ADR possibilities in contentious matters. In view of all
this, there is a good argument that the duty to advise a client about ADR before significant costs
144
This term includes ‘court users’ who may be litigation funders, insurers in subrogated actions or company directors: Legg, above n 140.
145
Boulle, above n 33, 291; the courts in the United Kingdom and Australia have had little difficulty effectively fining winning parties if they
failed to engage in ADR in good faith or at all: for an excellent summary of the authorities and the circumstances in which a successful
party has been deprived of costs for what might be called ‘ADR delinquency’: see Blake et al, above n 19, Chs 8-9 (116-140). In cases such
as Railtrack and Capolingua, the successful party ended up having a costly win because of their obdurate refusal to participate in ADR.
22
are incurred is now an implied term of the retainer. The courts regard so much as a given.146
Hence, the need to consider the basis upon which a term will be implied at law into this contract.
4.2
A WORD OF WARNING – SOME DISPUTES SHOULD BE LITIGATED
There is a need to sound a cautionary word with regard to restoring relationships in the context
of civil disputes. Not all disputes are capable of resolution. It may be necessary and desirable that
some dispute go to trial and judgment. Not all disputes are the same. Fuller has observed, with
some force, there is a ‘proper province of adjudication’ when it comes to ‘claims of right and
accusations of guilt’.147 Adjudication will continue to hold a rightful place in dispute resolution.148
Whether a dispute is amenable to ADR depends on the extent of the breach of values or trust.149
Fuller argues, however, that adjudication is incapable of solving ‘polycentric problems’.150 By this,
Fuller means non-legal problems where the parties have emotional and psychological and other
issues caught up with the dispute or which were the drivers of the underlying conflict.151 The
reason Fuller offers for adjudication’s inadequacy, and, by inference, ADR’s capacity, is that
‘certain kinds of human relations are not appropriate raw material for a process of decision that is
institutionally committed to acting on the basis of reasoned argument.’152 ADR outflanks judicial
adjudication in its preparedness to ‘explore underlying…interests and to examine the
relationships between the parties to a dispute [and] offer the potential for a ‘win/win’ solution.’153
It may be that in some cases, restoring parties, even where there has been a long-standing
relationship, is undesirable or inappropriate. Much will depend on the causes of the underlying
conflict and what led to a real or perceived154 dispute in the mind of at least one of the parties. It
is only in the context of long standing relationships where parties have an interest in maintaining
their relationship and where, regardless of the resolution of the dispute, the parties’ relationship
146
147
148
NSW Couriers Pty Limited v Newman, above n 155; McMahon v John Fairfax Publications Pty Ltd, above n 157.
Lon L. Fuller, ‘Mediation - Its Forms and Functions’ (1971) 44 Southern California Law Review 305, 368.
ADR is not a path that people can take to the exclusion of the law; dispute resolution must be by legally appropriate to the dispute.
149
As values, both espoused and real, become aspects of our cognitive and sometimes unconscious self, they become ‘embedded’ and
seemingly non-negotiable. The difference between espoused (high for other people) and actual (low self worth/esteem) values can be poles
apart.
150
Fuller, above n 147, 371.
151
Mayer, above n 62, 55-60 (a number of variables - cognitive, emotional etc - affect the way in which people engage in conflict).
152
Fuller, above n 147, 371.
153
Bennet G. Picker, Mediation Practice Guide: A Handbook for Resolving Business Disputes 3 (1998) cited in Dwight Gollan, ‘Is Legal
Mediation a Process of Repair or Separation – An Empirical Study and Its Implications’ (2002) 7 Harvard Negotiation Law Review 301, n 2.
154
Felstiner et al, above n 58 (conflict may be perceived, felt or real).
23
will continue. In such cases there is obvious utility in repairing the rupture to the relationship so
that the parties can continue to at least deal with each other civilly, and perhaps even courteously.
By no means, however, does restoration necessarily entail parties having a better relationship as a
result of the dispute resolution process than they had before. If all the dispute resolution process
achieves is a level of awareness on the part of each disputant of the hand or role they played in
the dispute materialising, then the process may be said to have worked. Through participation in
a process, parties experience growth and develop an awareness of how their dealings and their
conduct contributed to the dispute. Sometimes, ‘parties need a cathartic release of some kind.’155
This is important not only for an appreciation of the causes and solutions to the instant dispute
but also to learn how to avoid or handle future disputes, either with the same or different parties.
5
CHAPTER FIVE: DISCUSSION
5.1
WORLDVIEW
In the last 30 to 40 years there has been something of a revolution in lawyers’ worldview when it
comes to disputes and litigation. Before ADR and the case management reforms of the 1990s
and early 2000s, it was commonplace for most litigation lawyers to see a client as a ‘receptacle’ of
various rights some or all of which may be defensible or amenable to some kind of legal remedy.
It was almost certainly the case that the prospect of legal proceedings was a necessary incident to
the eventual resolution of the dispute by judgment or settlement in the course of the proceedings.
It must be said that since the 1970s, if not earlier, lawyers engaged on behalf of clients in
litigation have availed themselves of such alternatives to fully contested and fully adjudicated
outcomes by discussion and by serving letters of offer that could be admissible with regard to
costs. Such offers would not be admissible otherwise as the common law always took the view
that correspondence with a view to settling a dispute and written in that context was privileged.156
That this was the common law position was confirmed in the well-known English case of
Calderbank v Calderbank.157 This case became the seminal authority on which parties relied where
155
Mayer, above n 62 131.
156
This position has been reinforced by legislation, such as section 131 of the Evidence Act 1995 (NSW) and (Cth).
157
[1975] 3 WLR 586; [1975] 3 All ER 333; (1975) FLR Rep 113.
24
an offer letter could potentially be effective in relation to costs, even for a losing party.158 As well
as the service and the exchange of Calderbank letters was the advent of the formal offer of
compromise pursuant to rules of court. Like the Calderbank offer offers of compromise also laid
the foundation for courts exercising discretion in relation to costs such that a costs order could
be made which vary from the usual rule that costs follow the event.
Apart from these pre-case management mechanisms, however, lawyers also took a limited view
of their clients’ needs and the legal problem at hand and their worldview with regard to their
clients’ position and their role as lawyer was a narrow one. Worldview as a concept is relevant in
this connection because the approach but a lawyer takes when instructed in a dispute will depend
upon ethical and other professional constraints as well as rules of court as well as the way in
which a lawyer perceives their role in dispute resolution. What the rise of ADR has achieved both
in terms of cultural change within the legal profession and the judiciary as well as community
expectations has been to elevate ADR to a position that it once lacked in comparison to fully
fledged litigation.
ADR now is an accepted and widely and well-known and mainstream form of resolving disputes.
This is as much a testament to the variety of ADR mechanisms available as it is to litigations
signal failure to meet all of the needs of litigants and dispute in general. Sackville has referred, in
the context of access to justice, to the courts’ limited capacity to meet community needs. The fact
that ADR works and has along with legislative changes been a Central plank in reducing Court
backlog speaks volumes of ADR's capacity to settle disputes and manage conflict.
Immanuel Kant first raised the concept of worldview almost tangentially, but it was not until
seminal work of the likes of James Orr159 and Abraham Kuyper160 that worldview first came to
prominence. It has since become an integral concept across a wide range of disciplines including
theology, philosophy, political science and psychology to name a few. There are more recent
158
On the basis that if a successful party had done no better at trial than the terms of an offer they had previously rejected, they should be
deprived of their costs and the offeror should have their costs between the day after the last date the offer remained open of acceptance to the
conclusion of the trial. Discretionary factors were relevant to the exercise of the court’s discretion as costs are always in the discretion of the
court. As to discretionary judgments generally, see House v The King (1936) 55 CLR 499.
159
James Orr, The Christian View of God and the World as Centring on the Incarnation (Andrew Elliott, 1892)
160
Abraham Kuyper, Lectures on Calvinism (Eerdmans, 1931)
25
writers on worldview such as D K Naugle, James Sire, and Middleton and Walsh who have come
up with frameworks within which worldviews may be compared.161
The common basis of comparison has been to ask a number of existential questions to ascertain
the worldview of the respondent. Middleton and Walsh, for example, propose four questions to
determine worldview which are: who am I? where am I? what is the problem? and what is the
solution? It is apparent how the answers to these questions, in the context of lawyers retained in
disputes, can be useful to disclose their perceived role and their clients’ in the middle of disputes.
5.2
A CHANGE IN APPROACH OR ATTITUDE TO ADR
There are a number of reasons why so much cultural change has taken place with regard to ADR.
Much of the cultural change has been brought about by a shift in the curriculum of law schools
as well as overwhelming judicial support for ADR in Australia, as well as the United Kingdom
and the United States and elsewhere. These developments have been accompanied by
professional rule changes, statutory changes whereby ADR has become compulsory in many
areas and in the context of many disputes. The nature of the role of a lawyer retained in civil
disputes has undergone a cultural shift because of these matters. Authorities also disclose a ‘push’
in favour of participation in ADR. A number of costs and disciplinary cases evince a clear policy
of pushing back against an adversarial combative mentality on behalf of lawyers.
Change in legislation has brought about attitudinal change in lawyers as the legal culture changed
too. The legislative change that brought case management about did not change lawyers’ attitudes
overnight. In New South Wales, the Civil Procedure Act 2005 introduced a new regime of case
management in civil justice and empowered courts to make rules consistent with their inherent
power to control their own processes to case manage cases. The number of cases resolved by
mandated ADR demonstrates the Act’s undoubted success.162 There have also been referrals to
informal settlement conferences with the List Judge in, for example, contested estate proceedings
in the Equity Division of the NSW Supreme Court for estates valued at less than $500,000 since
161
D K Naugle, Worldview: The History of a Concept (Eerdmans, 2002); James Sire, Naming the Elephant: Worldview as a Concept (Inter
Varsity, 2004), B J Walsh and R J Middleton, The Transforming Vision (Inter Varsity, 1984).
162
See Figures 2-4 below.
26
2014. Most lawyers have embraced these changes. Unlike Fiss, most lawyers regard ADR and
case management and mediation as de rigueur163 and are not against the settlement of disputes.164
Lawyers are now faced with the ethical duty of advising clients of ADR alternatives but the way
that that rule in 7.2 is cast, that duty is a de minimis one and subject to the lawyer’s ‘belief’ albeit
‘on reasonable grounds’ that their client is already aware of those alternatives. Accordingly,
mandating an ethical duty on lawyers to do more than just ‘inform’ a client of ADR alternatives
would force lawyers, whether they like it or not, to change their attitude to the way in which they
advise and act in relation to their clients’ disputes. Ethical duties are minimum standards of
conduct expected of lawyers. Accordingly, the introduction of such a duty to try to restore
relationships would also be a minimum standard, but one which would bring about a seismic
shift in the way lawyers approach non-legal issues facing their clients, who are not ‘hypothetical,’
but ‘real clients’ with their ‘humanity.’165 Lehman warns lawyers not to take a utilitarian approach
and ‘hide behind a wall called instrumentalism.’166 Daicoff too urges lawyers to inculcate clients
with positive messages about ADR, not blithely ‘represent the client’s wishes without question’.167
5.3
THE CASE FOR A DUTY TO RESTORE
There has been overwhelming development in the changing nature of legal practice. Before ADR
became commonplace, law schools, the legal professional and the community saw the role of the
lawyer (particularly in litigation) as a ‘hired gun’ whose chief attributes should be combative and
adversarial.168 Collaborative law and practice challenged traditional norms of lawyers as ADR
advocates, eschewing a ‘positional approach’ and limited participation of clients’ in the ADR
process as well as the ‘quasi-arbitral role of mediators.’169 Case management changed this culture.
A trial and a fully contested hearing on the merits where all factual and legal issues are fully
ventilated is anathema to case management. Cases such as Ridolfo v Rigato Farms Pty Ltd170 and
163
Campbell Bridge quoted by Harman, above n 17.
164
Fiss, above n 117.
William Simon (1978) cited in Lehman, 1087.
165
166
Lehman debunks ‘instrumentalism’ a ‘psychic trap’ as it tends to ‘bludgeon such feelings as aversion or sympathy, which might lead us to
respond as humans to our clients’ predicaments’; so much so that Lehman sees all this as making lawyers become the opposite of Aquinas’
man or woman of ‘practical wisdom’ to whom clients entrust their dispute: Warren Lehman, ‘The Pursuit of a Client's Interest’ (1979) 77
Michigan Law Review 1078, 1081, 1083, 1085-1086.
167
Susan Daicoff, ‘The Future of the Legal Profession’ (2011) 37 Monash University Law Review 7, 11.
168
What Daicoff calls the ‘confrontational, adversarial…zealous advocate model’ in which ‘legal problems were solved via an adversarial
process’: Daicoff, above n 146, 11.
169
Boulle, Mediation, above n 33, 175, 297.
170
[2001] 2 Qd R 455, [2000] QCA 292.
27
appellate authority on a lawyer’s role in litigation strongly suggest that, post case management, the
days of a party having a right to a fully contested trial on all issues are over.171 In Ridolfo, dealing
with an application to withdraw admissions,172 the then Chief Justice of Queensland, Paul de
Jersey said that, ‘Parties do not have an inalienable right to a hearing of all issues on the merits.’173
The benefits to parties in having a duty to restore relationships is that not only will it solve the
instant dispute between them, it will also help clients see their own involvement in the factors
that gave rise to the dispute giving them an awareness of how to avoid conflict in the future
either with the same party or with a different party/parties in the same or different contexts.
Susan Daicoff has questioned whether lawyers are capable of ‘changing their spots’ when they
used to being combative and adversarial and see the dispute process as one that must be ‘won’ at
all costs.174 It is an interesting question whether or not a duty to try to restore relationships would
be regarded by the legal profession in general as unnecessarily burdensome, unduly onerous or
indeed warranted. Even if such a duty were warranted would it be a contractual or an ethical one?
Clearly enough, the nature of a dispute is an important factor in understanding whether a duty
would or should exist. Family law is a good example of complex relationships which are worth
salvaging – sometimes, at all costs – and even dry commercial disputes can involve complex
relationships including complex financial relationships, a party may well have a strong interest in
maintaining. In family law, it may not be in a person’s best interests to have an ongoing
relationship where one party is violent and abusive. Similarly, a commercial entity that is
consistently in default of agreed terms is not anathema to any continuing business relationship.
Disputes often arise for a reason and, sometimes, they are very good reasons. Some disputes arise
from misunderstanding or miscommunication. But that is the area where ADR and particularly
mediation have assisted parties to focus on the issues in dispute with a view to resolution of them
as well as attempting to restore whatever is left of the relationship. Another area is Wills and
171
White v Overland [2001] FCA 1835 (21 December 2001); Nolan v Marson Transport (2001) 53 NSWLR 116; [2001] NSWCA 346.
In Rigato, de Jersey CJ described the ability to acquire deemed admissions in civil litigation and the requirement for leave to withdraw
them as an important procedural mechanism aimed at expediting cases and reducing costs and promoting the interests of justice. [2000] QCA
292 at [21].
173
[2000] QCA 292 at [22].
172
174
‘… many lawyers bring to mediation the assumptions of the adversarial culture with a legalistic focus … This is a function of the ‘culture
of disputing’ which has developed around litigation, and a broader legal culture in which lawyers have traditionally been clients’ trusted
partisans and champions’: Boulle, above n 34, 296 citing Michael Palmer and Simon Roberts (eds), Dispute Processes – ADR and the
Primary Forms of Decision Making (Cambridge University Press, 2nd ed, 2005) 305-45.
28
estates where family members and siblings can engage in disputes that mean, in many
circumstances, that they will no longer have any kind of relationship with one another.
Sometimes, there is no doubt that such a situation could be avoided, but, very often, it simply
cannot be. Sometimes, there is no real advantage in a party having an ongoing relationship with
others. Imposing a duty aimed at restoring relationships could place lawyers in a difficult position
or even place them in a position of conflict. As with all conflicts questions, it is a judgment call.
It could be argued that the question of whether a duty to try to restore relationships exists or not
depends upon how one characterises the ‘best interests’ of clients. Traditionally, a client’s best
interests have been equated with ‘best outcome’ or ‘best financial outcome’ or ‘win’ where a win
is a verdict or judgement in the client’s favour following a fully contested and fully contested
proceeding. It is contended that the time has come where lawyers have a duty to raise legal and
non-legal considerations with clients.
A simple example is sufficient to illustrate the point. If a client is about to embark on legal
proceedings (before any legal process has been filed and substantial costs have been incurred) it
must be beholden on a litigation lawyer to advise a client that a judgment may well be written at
the conclusion of the proceedings and that judgment will be a public document which, once
published, including on the internet these days, will be accessible, downloadable and
transmissible, in theory, if not in practice, forever. Such an approach, that is, advising a client of
the public nature of a judgment, is consistent with the client’s best long-term interests and fits
within the ‘best interests’ test. Part of the process of advising clients in disputes must also include
discussing the possibility of reconciliation with the other party. Very often this is not possible,
particularly where the damage has been done and the emotional stakes are too high for any kind
of restoration to be a realistic prospect. Perhaps a clear duty would suit all dispute stakeholders.
5.4
DEVELOPMENT OF THE DUTY: BASIS AND CONTENT
It may be seen at once that these developments have produced a situation where it is time to
recognise that the kind of duty contended for exists. The fact, however, that such a duty may be
said to exist means that it is necessary to consider how the duty arises and its content. We have
seen how civil justice inquiries led to law reform, and, out of these reforms, case management,
where courts and lawyers and their clients were statutorily obligated to comply with the
‘overriding purpose’ of quick and cost-effective justice, became the new strategy to address delay
29
and court backlogs. Professional duties and judicial authority combined to create an environment
in which lawyers and their clients cannot sit back and think litigation is the only dispute
resolution option. There is almost now, as has been said, a ‘duty to mediate’. There is certainly a
duty on lawyers to advise clients of ADR options. But this is, of course, not the end of the story.
There is settled authority to the effect that a term will be implied into a contract is it is clear and
unambiguous, goes without saying, it is in the parties' interests and lends business efficacy to the
transaction and is consistent with the commercial purpose of the contract.175 The duty satisfies
each of these criteria. If this duty is now an implied term of the retainer, then a duty to advise
about ADR (which is the first step toward people restoring relationships) is already, at law, a
contractual term of the lawyer/client retainer arising by implication, if not as a matter of law.
There are, therefore, good reasons for the existence of such a contractual duty (to canvas legal
and 'non-legal' issues with clients with a view to potential restoration); it would be neither unduly
onerous nor an intolerable burden on lawyers. Compliance with such a duty (which would require
more than a brief explanation) may protect lawyers from being sued by their clients. Such a duty
might also insulate clients from extensive legal costs and their counterparty’s costs too if they lose
the litigation. It would also avoid any 'satellite' litigation and the attendant costs of ‘re-litigating’.
The public purse would also be spared additional expense as a result of more cases being referred
to ADR (due to lawyers’ increasing awareness of and compliance with this duty) and not
requiring a trial and fewer already-scarce judicial resources, and fewer judges, would be required.
A case against a lawyer for breach of duty would require proof that a real chance was lost176 to
engage in ADR and reach agreement. Much depends on causation.177 Civil cases only require the
civil standard of proof, which is not a high bar, but proving that ADR would more probably than
not have resulted in a more favourable result than a fully litigated one has evidential problems.178
175
The Moorcock (1889) 14 PD 64 (25 February 1889); Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1981-1982) 149 CLR
337; (1982) 41 ALR 367; BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; [1977] UKPC 13 (27 July
1977).
176
Rogers v Whitaker (1992) 175 CLR 479; Chappel v Hart (1998) 195 CLR 232.
177
Jaensch v Coffey (1984) 155 CLR 549; March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506.
178
Breger, above n 28, 450-1: ‘…in an informed consent case, a plaintiff must show that if he had been offered the alternative option that he
would have chosen that option.' But in a malpractice claim over an attorney's failure to discuss ADR alternatives, the plaintiff would have to
show that he would have chosen that option, that opposing counsel would have accepted the option proposed, and that the choice would have
proven successful.’ Damage would need to be shown as damage is an element of negligence; the damage would need to be foreseeable:
Hughes v Lord Advocate [1963] AC 837. A lawyer may also be liable under section 18 of the Australian Consumer Law [within the
Competition and Consumer Act 2010 (Cth)] (formerly section 52 of the Trade Practices Act 1974 (Cth) if the client is held to have been
30
This issue introduces timing as in issue requiring consideration as part of any duty owed by
lawyers to clients in contentious matters. When, for example, would it be appropriate for
restoration to be considered? Also, how would a lawyer independently evaluate the effect of
restoration on the client and the dispute? The answer to these questions much surely be: ‘As soon
as possible.’ It may be that restoration of relationships in general is a factor that could or should
be considered in the wider context of the ‘best interests’ test. To try to impose it and enforce it,
however, as a separate duty on lawyers might be regarded as both unnecessary and burdensome.
Lawyers would take the view that they are engaged in advising clients about the law and how the
facts of the matter fit within the law and any available remedies. In this way, it might be said that
lawyers act as ‘interpreters’.179 If that is a correct characterisation of lawyers, it might be argued
that lawyers ought not intrude too far into people’s lives, and their right to individual autonomy
and to retain personal boundaries when communicating or interpreting the law for them.180 In
practical terms, lawyers would probably argue that they are already busy focusing their limited
time and resources on advising, communicating and interpreting the law and considering all
available options for clients, and that imposing some kind of ‘moral judgement’ as an option they
might consider and how likely such a judgment call may affect other relationships is too difficult.
question. It may be, though, that such issues are already part of the consideration of the client’s
best interests.181 The causes and effects of clients’ decisions are ultimately their responsibility. The
damage has usually been done before lawyers are retained. But this does not relieve lawyers from
a duty to try to restore relationships that will continue irrespective of the outcome of the dispute.
It would unarguably have to form part of the lawyer’s overall assessment of their client’s best
interests, consistent with their existing ethical obligations to the client in this regard.
A consideration of whether there would be ‘push back’ from the profession over such a duty is
one thing. However, the reality appears to be very different. For some time now, we have already
seen many law firms in the suburbs and in the cities embracing ADR to such a degree that they
have separate ADR departments whose lawyers specialise in acting for clients in an ADR context.
Oliver Wendell Holmes may have quipped that the ‘life of the law had not been logic, but
misled or deceived by the lawyer’s representation or silence (failure to advise when there was a duty to do so) ‘in trade or commerce’ or the
lawyer’s conduct (representation or silence) was likely to have had that effect and the client relied on it to their detriment.
179
David Luban’s description of lawyers quoted in Menkel-Meadow, above n 21, 2678.
180
Strasburger, above n 87, 207.
181
Michael King, above n 8, 1123.
31
experience,182 but the fact that ADR is now an entrenched part of the services many law firms
offer shows that logic and experience are not always mutually exclusive. ADR works.
Litigation, with its attendant risk and costs, does not always work out. Experience shows that
referral of contentious matters, with or without related proceedings on foot, has its own inherent
logic. The reality is that the vast majority of cases referred to ADR are settled. But cultural
change takes time. Cultural change has taken place within the legal profession, which is unique in
the sense of professional engagement with a branch of government, namely, the judicial branch.
A powerful factor in this cultural change has been the judiciary’s overwhelming support for ADR
and case management. This paper is not the place to explore the various arguments for and
against mandatory or voluntary referral of disputes to ADR. Nor is this paper the place to analyse
the various arguments concerning access to justice and whether ADR is a form of ‘inferior
justice’ compared with a parties’ right to have their day in court, a full hearing on the merits and
the judicial determination of their dispute, the right to which is by no means unfettered any more.
The gravamen of case management is to narrow the real issues in dispute between the parties so
that only those issues will remain for trial if the proceedings cannot be settled. The ‘overriding’ or
‘overarching’ purpose signalled the death knell for a trial on the merits on all issues. Similarly,
courts have repeatedly maintained that an important purpose of ADR is to manage the issues in
dispute, even if the disputed itself cannot be settled as a result of ADR. As with other forms of
cultural change in the legal profession, of which judicial case management is, arguably, the most
important in the last 20 years, as well as mandatory ADR, it may be that the legal profession
simply has to accept and embrace such a duty and do whatever is reasonable and necessary to
discharge it. As has been said, it will not be appropriate or desirable in every case for relations
between the disputants to be restored. A common sense approach to this question is all that
would be required. Non-legal issues are part of the baggage clients bring with them. It may also
be that lawyers will need to become more multidisciplinary in their approach to dispute
resolution than they have been in the past. This would involve a routine preparedness to refer
clients to other professionals to help them cope with the ADR process (and any associated
litigation) and reality check and monitor the position they have maintained in the dispute.
182
Oliver Wendell Holmes Jnr, The Common Law (1881).
32
As I have argued that this duty is already implied in the lawyer-client retainer so that it is likely to
be an existing contractual duty and because it is also a probably now a lawyer’s duty to a client (in
the sense that breach may constitute negligence provided that there is damage) it cannot be
seriously argued that the imposition of such a duty (in terms of an ethical or professional rule
would either be an unnecessary imposition or add an unnecessary burden to a lawyer’s
professional responsibility to their client.
ACSR [7.2] already imposes a duty on lawyers to advise clients of alternatives to litigation. This
ethical duty is the first important step particularly for unsophisticated clients (not so much repeat
players) unfamiliar with the legal system and who may be unfamiliar with processes falling short
of the court system whereby an enforceable agreement may resolve a dispute quickly and cheaply.
The issue of whether a duty in any sense can be justified must be looked at from the perspective
of (i) the burden of the profession (ii) the benefit to clients and users of the legal system (iii)
societal interest. Such a duty satisfies all three criteria. Indeed, lawyers have an interest in such a
duty proscribed in much the same way as the duty to reduce costs agreements183 to writing has
benefited the profession’s recovery of legal fees. That duty was first thought to be an imposition
on the profession, but it resulted in greater enforceability of costs agreements with clients who
might otherwise try and resile from them. Similarly, compliance with this duty, even if a
continuing one, only requires lawyers not to close the door on the possibility of an ADR
outcome and a settlement short of a full contest both in actual fact (in correspondence, for
example) as well as in their client’s mind. This would protect lawyers from claims of (i) breach of
their retainer, (ii) negligence (breach of duty of care) (iii) professional complaints, and (iv)
disciplinary sanction as the duty is clearly articulated and compliance with it becomes simply part
and parcel of their advice and conduct in relation to their clients’ disputes. Looked at negatively, a
lawyer would not be able to advise a client to close their mind to ADR while they are retained.184
The other benefit of this duty is that compliance with this duty scotches any suggestion that a
lawyer’s continued conduct in a contentious matter (litigated or not), and the attendant fees a
183
Felstiner et al, above n 58, argue that there is a ‘political dimension to the emergence and transformation of disputes’ (653-4) and a
‘politico-social purpose to dispute resolution’ for ‘healthy social order’ (653). Although Fuller argues that ‘social ordering’ includes
‘informal means of resolving disputes’, his argument that society is purely ‘binary’ may have been true one, but the embedded nature of
ADR shows that society has become much more nuanced now. Fuller acknowledges that formal adjudication as a form of social ordering is
limited: Fuller, above n 147, 366-367.
184
It is arguable that the rule requiring advice about ADR options, in light of what McClellan CJ in CL said in NSW Couriers is a continuing
one.
33
lawyer generates, conflicts with the interest of their clients to resolve their disputes as quickly and
cheaply as possible.
Another benefit of this duty and compliance with it is that a lawyer will add value in their client’s
service because they may ultimately end up getting a result for their client that is far more
comprehensive and holistic than could ever have been achieved through a litigated outcome. In
this way, lawyers demonstrate to their clients a more collaborative, comprehensive and creative
approach to their client’s problem than the stressful, costly, risky and narrow litigated alternative.
The content of such a duty could be cast in such a way where it signals to clients in the clearest
possible way that even if they have no interest in restoring the relationship, such an approach is
nowadays almost certainly not in their interests particularly in the context of relationships, which
by their nature, may or will be ongoing. If parties have an underlying conflict, which is generating
satellite disputes, it is in their best interests to restore the relationship and resolve or at least
manage the underlying conflict. Courts will not allow parties to become vexatious litigants and, as
has been said, lawyers have a duty to spare the courts of which they are officers from bad cases.185
5.5
CONCLUSION
Values of harmony and healing inform ADR. These values are consistent with notions of justice.
It is time for lawyers to play a transformational role in ADR to try to restore relationships as well.
As the resolution dispute zeitgeist of the 21st century has came a long way from the coercive
approach of more primitive societies to one where consensus prevails, and where obsession with
rights has given way to interests, imperatives for discerning a holistic duty to try to restore parties
who are in dispute is timely. Such a duty can readily be practically implemented in Australia. On
one view, such a duty is the logical extension of what has been termed the ‘duty to mediate’. It is,
though, really a parallel duty undergirded by ethical and statutory duties (to further case
management objectives). It is ethical by virtue of the enactment of legal profession legislation and
conduct rules. It is also statutory given the duties on lawyers in the CPA and cognate rules. Such
a duty might be best implemented by simple amendment to existing legal professional rules. The
biggest impediments though to a duty to try to restore relationships are the disputants
185
For example, under the Vexatious Proceedings Act 2008 (NSW). If a party is declared a vexatious litigant, it will impact their capacity to
resolve future disputes as any proceedings they wish to bring or threaten to bring as part of any bargaining will require the leave of the court.
This duty not to bring or defend hopeless cases stems from the ‘reasonable prospects’ requirement in section 345 of the Legal Profession Act
2004 (NSW) and the power of the court to award costs against lawyers where a case lacked such prospects: see White Industries (Qld) Pty
Ltd v Flower & Hart (A Firm) [1998] FCA 806; 156 ALR 169; 29 ACSR 21.
34
themselves, the nature of the dispute and the conduct giving rise to it. There is no getting away
from the fact that a party’s desire to restore a relationship depends on the reasons for its rupture.
Litigation is, by its nature, limited to existing and accrued rights, whose determination may well
affect future positions of the parties. But ADR looks to the future and asks how relationships
might be restored now for then. Lawyers who care about clients’ best interests must do the same.
Figure 2. NSW District Court figures showing breakdown of civil outcomes for 2015186
186
New South Wales District Court Annual Review 2016, 25.
35
Figure 3. NSW District Court figures showing civil outcomes for years 2012-15187
187
New South Wales District Court Annual Review 2016, 25.
36
Figure 4. NSW Supreme Court figures showing civil ADR outcomes for years 2011-15188
188
New South Wales Supreme Court Annual Review 2015, 54.
37
6
CHAPTER SIX: REFERENCES
6.1
BIBLIOGRAPHY
6.1.1
Articles/Books/Reports
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(2005) 10 Harvard Negotiation Law Review 103
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(1991) 19 Florida State University Law Review 47
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Altobelli, Tom, 'New South Wales ADR Legislation: The Need for Greater Consistency and
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Altobelli, Tom, 'Mediation in the Nineties: The Promise of the Future' (2000) 4 Macarthur Law
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ALRC Review of the Adversarial System of Litigation
Audi, Robert (ed), The Cambridge Dictionary of Philosophy (Cambridge University Press, 2nd ed, 1999)
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38
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(Thompson Reuters, 2nd ed, 2012)
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Singapore, 4-5 October 2012
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(2002) 30 University of Western Australia Law Review 167
Casey, Samuel B, ‘My Peace I Give You’ (1995) 16 Quarterly 3
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Cotman, Nigel and Walker, Mary, “Conducting an ADR process and the Legal Profession
Uniform Conduct (Barristers) Rules – Recent Developments” (2015) Australian Alternative Dispute
Resolution Law Bulletin 84
39
Coves, Paul, ‘Alternative or Mainstream? Is it time to take out the ‘A’ out of ADR?’ (2015) 20
Proctor 43
Crary, D R, ‘Community Benefits from Mediation: A Test of the "Peace Virus" Hypothesis’
(1992) 9 Mediation Quarterly 3; Periodicals Archive Online 241
Daicoff, Susan, ‘Lawyer, Know Thyself A Review of Empirical Research on Attorney Attributes
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Solutions to Problems with Professionalism by Reference to Empirically-Derived Attorney
Personality Attributes’ (1998) 11 Georgetown Journal of Legal Ethics 547
Daicoff, Susan, 'Law as a Healing Profession: The "Comprehensive Law Movement"' (2006) 6
Pepperdine Dispute Resolution Law Journal 1
Susan Daicoff, ‘Lawyer, be Thyself: An Empirical Investigation of the Relationship between the
Ethic of Care, the Feeling Decision-Making Preference, and Lawyer Well-Being’ (2008) 16
Virginia Journal of Social Policy and the Law 87
Daicoff, Susan, ‘The Future of the Legal Profession’ (2011) 37 Monash University Law Review 7
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Leadership, Professionalism, Emotional Intelligence, Conflict Resolution, and Comprehensive
Law’ (2012) 52 Santa Clara Law Review 795
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Relis, Tamara, ‘It's Not about the Money: A Theory of Misconceptions of Plaintiffs' Litigation
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Schopp, Robert F., ‘Pursuing Non-Adversarial Justice within an Adversarial Structure’ (2011) 37
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6.1.2
Cases
The Moorcock (1889) 14 PD 64 (25 February 1889)
Nocton v Lord Ashburton [1919] AC 492
House v The King (1936) 55 CLR 499
48
Hughes v Lord Advocate [1963] AC 837
Phipps v Boardman [1967] 2 AC 46; [1966] 3 All ER 721
Calderbank v Calderbank [1975] 3 WLR 586; [1975] 3 All ER 333; (1975) FLR Rep 113
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; [1977] UKPC 13 (27
July 1977)
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1981-1982) 149 CLR 337; (1982) 41 ALR
367
Jaensch v Coffey (1984) 155 CLR 549
Giannarelli v Wraith (1988) 165 CLR 543
Capolingua v Phylum Pty Ltd (as Trustee for the Gennoe Family Trust) (1991) 5 WAR 137
March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506
Hooper Baillie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194
Rogers v Whitaker (1992) 175 CLR 479
Clark Boyce v Mouat [1994] 1 AC 428; [1994] 4 All ER 268
Maguire v Makaronis (1997) 188 CLR 449
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) [1998] FCA 806; 156 ALR 169; 29 ACSR 21
Chappel v Hart (1998) 195 CLR 232
Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996
Ridolfo v Rigato Farms Pty Ltd [2001] 2 Qd R 455
Nolan v Marson Transport (2001) 53 NSWLR 116; [2001] NSWCA 346 (27 September 2001)
White v Overland [2001] FCA 1835 (21 December 2001)
49
Dunnett v Railtrack plc [2002] 2 All ER 850
NSW Couriers Pty Limited v Newman [2002] NSWSC 1172
People’s Mortgage Corporation v Kan Bankers Surety Co 62 F Appx 232 (10th Cir 2003)
Darwalla Milling Co Pty Ltd v Hoffman La Roche Ltd & Ors (2006) 236 ALR 322
Brown v Rice [2007] EWHC 625 (Ch)
Lemery Holdings Pty Limited v Reliance Financial Services Pty Ltd [2008] NSWSC 1114
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175
ASIC v Rich [2009] NSWSC 1229; 236 FLR 1
McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308
Peterson v Merck Sharpe& Dohme (Aust) Pty Ltd (No 6) [2013] FCA 447
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited
[2013] HCA 46. 88 ALJR 76
Camilleri v The Trust Company (Nominees) Limited [2015] FCA 1468
Earglow Pty Ltd v Newcrest Mining Ltd [2016] FCA 1433
6.1.3
Legislation
Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth)
Evidence Act 1995 (NSW) and (Cth)
Legal Profession Act 2004 (NSW)
Succession Act 2006 (NSW)
Trade Practices Act 1974 (Cth)
50
6.1.4
Delegated Legislation
Federal Court Rules (Cth)
Legal Profession (Solicitors) Rules (ACT)
Legal Profession Uniform Law Application Act 2014 (NSW)
Legal Profession Uniform General Rules 2015 (NSW)
Legal Profession (Solicitors) Rule 2007 (Qld)
Professional Conduct and Practice Rules 2005 (Vic)
Professional Conduct Rules (December 2005) (WA)
Uniform Civil Procedure Rules 1999 (Qld)
Uniform Civil Procedure Rules 2005 (NSW)
6.1.5
Other
LEADR Mediation Workshop Materials, Sydney, 28 April-2 May 2014.
51