Mediation is not synonymous with “alternative dispute resolution”. It is simply one of the tools of alternative dispute resolution.
However, when lawyers tend to talk about ADR (alternative dispute resolution) they tend to talk about it as if the only tool is Mediation.
Lawyers are very familiar with trying to “settle” cases. They understand that it is part of their overall duty of care to their clients to try to help them settle the dispute, if they can, without the need for a court hearing.
Lawyers adopt a fairly standard and conventional format to try to “settle” disputes. This is not “ADR”. This is part of their normal stock of trade as litigation lawyers. It is part and parcel of their litigation model for dispute resolution. It is not part of the ADR model for dispute resolution.
We have explained in earlier posts on this blog that lawyers who stay within the “litigation paradigm” when handling a dispute follow one track and lawyers (or non-lawyers) who are skilled in alternative dispute resolution follow a very different track in assisting a client to resolve a dispute. They adopt a client-orientated model to manage the dispute.
All courts and tribunals now have written up in their court practice and procedure rules a set of rules to encourage those engaged in litigation who have filed proceedings in the court or tribunal to try and resolve their dispute without a formal court hearing. The rationale behind these rules is that litigation is expensive and the outcome precarious for the parties to the proceedings. Judges often caution parties that no matter what their lawyers have told them a judge might see it differently after hearing all the evidence and watching witnesses under cross-examination. Even the victor may end up disappointed if he or she fails to get the optimal result desired from the court or tribunal.
However, all these rules of court or tribunal rules, that incorporate rules to encourage settlement out of court by various means and mechanisms, INCLUDING MEDIATION, are NOT ADR (alternative dispute resolution). It is still all happening within the LITIGATION PARADIGM for dispute resolution. Mediation is installed into the Court Rules as an adjunct to the litigation process. It is there to promote out of court settlements and spare the huge cost burden to the parties and to limited court resources.
Many lawyers are now being trained to only consider Mediation within the framework of a Court managed litigation timetable. This is called Case Management.
It is a port of call along the Litigation Continuum.
The parties are told that they are expected to go to mediation along that litigation continuum before the court fixes a final hearing date.
In this paradigm, it is my experience that almost all the focus in placed on the mediation event itself rather than on PRE-MEDIATION STRATEGIES AND PREPARATION.
This can have a number of adverse consequences for the clients who are the parties involved in the dispute. Here are some of them:
1. They are deprived of multiple “ADR” strategies that can be engineered and take place before scheduling the mediation;
2. They are erroneously led to believe that Mediation is the only real alternative to a Court Hearing to help them resolve their dispute;
3. They are often taken to a Mediation that is not a real Mediation but rather a hosted settlement conference (see my earlier posts on this theme);
4. They are often erroneously told by their lawyer that they have just one bite at the settlement cherry at the scheduled mediation and if it “fails to settle” then they are back on track to go a final hearing.
The truth is that much can be done prior to mediation to foster resolution of the dispute and much can be done in preparation for a mediation that greatly enhances the prospects of success at the mediation. All this is wrapped up in true ADR philosophy and strategies.
I will go into these strategies in my future blog posts. So keep a look out for them.
Until then,
Christopher J Whitelaw
Barrister and Mediator
www.chriswhitelaw.com.au
02 94208213
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