The attitude of legal professionals to mediation
It would be fair to say that lawyers have been amongst the strongest advocates both for and against mediation especially when it is mandated (whether as part of Rules of Court dealing with Pre Action Procedures) or legislated (such as by the FLA or CDRA or State and Territory equivalents).
It is interesting to note that the qualification of mediators (or FDRPs in the case of the FLA) was initially seen to be and in fact was connected with legal or social science qualification. This had the effect of excluding others (or reserving the “privilege” of qualification and accreditation to those professions).32
Irrespective of the historical reluctance of lawyers to embrace mediation (as is often asserted to be so) and their suggested propensity to see mandated pre-action mediation or FDR as a “speed hump” in the road to the Court, there can be no doubt of the acceptance, and I would suggest embrace, of mediation by the majority of the legal profession. In family law one need look no further that the number of legal practitioners who have completed mediation or FDR training and gained accreditation.
This embrace of litigation, from the 1980s to date, has no doubt been contributed to by any number of factors.
The rapid embrace of change within a profession of such ancient traditions as the legal profession is, on many levels, unrealistic. There is, as the Toffler’s33 advanced, a natural reluctance by many to see, adjust to or embrace change. Lawyers are not alone in that regard.
The period from mediation’s first appearance as a formalised system of dispute resolution to the present has been a period of unprecedented threat and disadvantage for lawyers. For the first time in Australia’s history the role, validity and sanctity of the work undertaken by the legal profession has been attacked. The introduction of licensed conveyancing, no fault or, as is presently proposed in NSW, capped fee compensation regimes, Tribunals with appearance by leave only, inability to claim costs in certain civil claims matters and the like have had a real impact on the availability of work for and livelihood of lawyers.
In those circumstances it is entirely explicable (though perhaps not appropriate) that reservation towards and rejection of mediation occurred. But times have changed.
Many have observed that the community has, albeit with imperfect knowledge or understanding of mediation, been responsible for a consumer driven shift in favour of mediation. No doubt the concerns expressed by many in the sector regarding community understanding and misunderstanding of mediation34 has been driven by a desperate desire for a quicker, cheaper and less painful resolution of dispute and knowledge made readily available through online research and the power of Google.
But lawyers have had a significant role to play as well and it would be disingenuous and pejorative to suggest that the profession has been, at first, reactionary and then entirely responsive. Many lawyers and lawyers’ associations have led the way including State and Territory Law and Bar Societies, Associations and Institutes and the Law Council of Australia. In addition lawyers and lawyer/mediators are prominent and a substantial if not majority membership of groups such as AIFLAM, LEADR and so on.
John North35 set out the steps which had already been taken by Courts and the Profession and their representative bodies in 2005:
The Council of Chief Justices of Australia and New Zealand, in an important move in March 1997, agreed that it is a function of the State to provide the necessary mechanisms for the resolution of disputes and that Court annexed mediation was part of that process…
The Law Council’s Constituent Bodies, the various law societies, law institutes and bar associations in Australia, have fostered alternative dispute resolution processes within the legal profession and have been responsible for providing pilot schemes in some courts.
The New South Wales Law Society, for example, encourages its members to advise clients of the advantages of mediation through the publication of guides and codes of practice. The law societies of the Australian Capital Territory, New South Wales, Queensland, South Australia, Victoria and Western Australia offer dispute resolution services or maintain a register of approved alternative dispute resolution practitioners, which is made available to the public. The Law Council has also been involved in the development of standards for mediators and model rules for courts and tribunals.
Most Law Schools at Australian Universities now include as core, if not mandatory, subjects ADR and mediation (and many have established and been accredited to provide FDR and Mediation training programs to provide accreditation).
Lawyers have also grown tired of dissatisfied clients and dissatisfying practice and have searched not only for relevance in changing markets and environments but sought better means of practice, service delivery and, ultimately, dispute resolution and conflict management. Lawyers have been quick to see and seize the advantages of quicker, cheaper and more satisfying and long lasting resolution of disputes.
The legal profession has, by and large, fulfilled the promise of famous lawyer Abraham Lincoln:36
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man.
Credit needs be paid where due in this regard. In this regard Bridge again makes the clear and valuable point, as regards lawyers and their evolving attitudes to mediation:37
Lawyers engaged in litigation are subject to pressures from their clients, from ethical rules which bind them, and from rules of court to achieve early settlement. Mediation is a commonly utilised means of complying with these various obligations.
In jurisdictions with mandated Pre Action Proceedures (essentially all jurisdictions in Australia and almost without exception Courts at all levels within those jurisdictions) mediation is now not only an accepted but a convenient means (if not mandated means) of complying with such obligations.
Mandated and prescribed Pre Action Procedures (whether within Court Rules or Legislation) have imposed obligations upon lawyers to use, give advice regarding and engage in mediation. The existence of legislative, rule based or common law sanctions for failing to comply has no doubt sharpened the focus of lawyers individually and collectively as observed again by Bridge:38
From an ethical perspective, lawyers practising in New South Wales ignore ADR at their peril from a professional and potentially even a disciplinary perspective. While lawyers are subject to an over-riding obligation to advance and protect the client’s interests to the best of their ability, this includes an obligation not to encourage the client to act to his or her financial detriment when a solution with less personal and financial cost such as settlement may be open. This philosophy is not only embodied in ethical rules, but it is also incorporated in both court procedures requiring (in some jurisdictions) steps to be taken to settle disputes pre-litigation, as well as the risk of either a recalcitrant client or, in extreme circumstances, his lawyer personally becoming liable for the cost of the other side.
No doubt over time lawyers have also become used to, accepting of and ultimately champions of mediation. As Justice Spigelman39 had opined and as quoted within the following passage of Justice Bathurst:40
…non-consenting parties can, in fact, become willing participants in the mediation process and participate in constructive and successful outcomes. As Chief Justice James Spigelman said ‘There is a category of disputants who are reluctant starters, but who become willing participants.’
In my experience from the Bench few practitioners now fail to understand the requirement to attend or attempt to attend41 FDR prior to commencing parenting proceedings.
Read more here from Judge Joe Harman
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