LAWS408: Alternative Dispute Resolution Australian Dispute Resolution: Law and Practice by L.Boulle and R.Field

Transcription

1 LAWS408: Alternative Dispute Resolution Australian Dispute Resolution: Law and Practice by L.Boulle and R.Field Class 1: Lawyers, Law Business and Dispute Resolution Chapter 1: Lawyers, lawyering and dispute resolution Introduction Dispute resolution (DR) knowledge, skills and attitudes are critical factors in the legal profession s response to the challenges of change. DR is central to the future of legal practice. The profession of law The legal profession professes commitment to the rule of law which provides a foundation for civic systems to serve society by supporting social stability and order. The practice of law is simultaneously a profit-making business and a profession. Admission to legal practice requires a person to be of good character; to have a moral compass and to conform to the customs and character of the community. On admission, lawyers swear that they will act truly and honestly DR and the nature of legal work Traditional legal practice generally involved lawyers meeting with clients, writing letters, contracts, memoranda of advice, drafting court documents etc. Traditionally, legal work has been broadly divided into transactional work (focused on the formation, negotiation and documentation of business transactions) and DR work. Lawyers are engaged as expert advisers, spokespersons or advocates who negotiate on behalf of a client, assisting them to develop options, making informed choices and decision, and take control of problematic personal and commercial situations. Communication skills are critical to a lawyer s work. DR is core to contemporary lawyering. Transactional competency is necessary for new lawyers because it is equal to or more dominant than DR practice, as it occurs in diverse legal settings. DR expertise should be accepted as doing more than simply augmenting an adversarial system focused on litigation. Transactional lawyers perform due diligence and evaluate business and legal risks in connection with transactions, draft contracts, negotiate terms in complex agreements and understand the greater commercial contract in which transactions take place. Transactional lawyers must be able to provide advice and advocacy and draft legal documentation. Transactional lawyers need: To understand business associations, advise on business structures and draft documents related to business associations; The ability to investigate facts and research the law; The ability to draft and negotiate contracts; and The ability to identify and address the ethical implications of transactional practice. Need DR knowledge, skills and attitudes (i.e effective questioning skills) to execute the above competencies well. Transactional lawyering requires DR expertise and is part of the DR matrix because effective transactional practice can operate to prevent disputes arising in the future. In effect, transactional lawyering is a form of preventative law, for which DR expertise is essential. 1

2 Many legal disputes are now resolved by lawyers without court proceedings, so lawyers must have DR knowledge. It is estimated that only 5% of cases proceed all the way to trial, with 95% resolved through other DR processes before the trial date (pg 11). Lawyers must have the DR knowledge to diagnose what process would best suit the particular issue to be resolved. Why are more disputes being resolved outside of the courts? Clients are demanding that their legal advisors help them find ways to resolve disputes without the cost, delay and disruption of court proceedings. Lawyers are more aware of the benefits of DR approaches. DR processes, such as mediation, have been increasingly institutionalised through recognition in government policy and inclusion in statute (i.e Civil Dispute Resolution Act 2011 (Cth)). Statute requires parties who want to commence proceedings to take genuine steps to resolve their dispute, using negotiation or assisted DR processes. Requirement for DR efforts is also in other statutes, such as s 601 Family Law Act 1975 (Cth). Even when a dispute is in court, judges have power to refer matters to a court-connected DR process e.g Federal Court of Australia 1976 (Cth) s 53A- refer matter to mediation) Conduct rules impose duties to advise clients on alternatives to litigation e.g r 7.2 Australian Solicitors Conduct Rules: A solicitor must inform the client about alternative to adjucation of the case which are reasonably available to the client unless the solicitor believes on reasonable grounds that the client already has an understanding of those alternatives To discharge the above duty, lawyers must know and understand what appropriate alterative approaches to litigation exist for their client, which requires an understanding of the processes in the matrix of DR options and their characteristics. Lawyering, DR expertise and upholding the rule of law The rule of law contributes to the maintenance of peace, order and freedom in society. It denotes a society that is governed by laws that regulate complex relationships relationships between people, and between people and the State. Rule of law is cornerstone of legal practice. Lawyers contribute to a just and orderly society in which human rights and freedoms are maintained, democracy is upheld and principles of market economy are supported as agents of the rule of law. Brennan CJ summarised the rule of law in three points: Service to people of a society; The provision of stable order; and Freedom from the vagaries of personal whim or influence. Lawyers ensure that the law treats citizens equally and they hold political and legal systems to account to prevent arbitrary uses and abuses of power, so lawyers are essential to the rule of law. Hayne J: It is relevant to speak of the rule of law in connection with DR only if the DR concerns legally enforceable rights and duties Brennan CJ: The law which rules is the law according to the ruling of the court, but it is applied in offices and chambers of the legal profession. It is applied in drafting and advising: in consultations more than in litigation. The rule of law does not require legal DR to be adversarial and court-based and the role of lawyers under the rule of law extends beyond legally enforceable rights and duties. The challenges of change for the legal profession Legal profession has faced criticism for its approaches to delivering legal services: Some contend that lawyers are profit driven and discard ethics; Some content that the legal profession is out of date; 2

3 Argued that the civil system is too slow, expensive and adversarial. Pressures prompted by several factors: More market competition. Clients now have a stronger voice in determining what services they need and how much they will pay for them. Clients have expectations for lower cost and greater efficiency. Advances in technology: Lawyers must not only be equipped with legal knowledge but knowledge of new technology and how to implement them. Client can also access a lot of legal information and resources online. Technology also allows for smaller firms to compete more effectively with larger firms. Richard Susskind challenged the legal profession to rethink its position in society in his 2008 work, The End of Lawyers? and his 2013 work Tommorrow s Lawyers: The profession will see more change in the next 20 years than it has in the last 200; The change will force the profession to rethink its practices, ethics and values, reframe its education, and work to protect lawyers psychological well-being; There will be en end to traditional forms of legal work because the market will reject the model of expensive lawyers delivering standardised tasks; Law firms will have to use smarter systems that can complete tasks just as well, if not, to a better standard, and more cheaply. Some of Susskind s predictions are already manifesting due to technology and globalisation. Lawyers work, in the future, will have to be undertaken differently, using alternative methods, if the profession is to meet the market s expectations for quality legal services delivered more responsively and efficiently. DR as a response to the challenges facing the legal profession Lawyers with DR expertise will be in the best position to harness the necessary knowledge and skills to response to the demand for new forms of legal service provision, as they are more innovative and communicate more effectively with clients. Susskind envisages that social media and online platforms will support access to justice and facilitate DR. Legal education and DR: preparing lawyers for the future Law school is the foundation of preparation for potential lawyers and DR education should be a central to legal education as it is a fundamental professional competency. Not educating future lawyers in DR is failing the students and the profession and it restricts its capacity to move forward in the future. DR should be a core subject because it is necessary to ensure the degree is current and relevant, and it satisfies all 6 of the threshold learning outcomes (TLOs). Legal education, the Priestly 11, and DR Priestly 11: 11 subjects agreed on in 1976 as requirements for student to be eligible for admission to the legal profession. DR is not a Priestly 11. Argued that the currently list of 11 subjects is not adequate until it includes DR. DR and the threshold learning outcomes (TLOs) TLOs developed in 2010 to address the emphasis of the law curriculum of doctrinal legal knowledge and the absence of a focus on legal skills and attitudes. Has been suggested that the TLOs should replace the Priestley 11. TLOs: 3

4 1 - Knowledge: recognises the place of doctrinal content found in the Priestly 11. DR knowledge can be used to make sense of other doctrinal knowledge by providing a framework within which to apply legal analysis and reasoning skills. 2 - Ethics and Professional Responsibility: Focuses on the attitudes and values of an ethical disposition, that is, having the capacity to make good professional judgements. Need to understand DR to effectively discharge duties. 3 Thinking skills: Allows for opportunities for law schools to harness DR knowledge. 4 Research Skills: Intellectual and practical skills can be taught through research tasks associated with DR knowledge. 5 Communication and collaboration: Focuses on communication theory and development of interpersonal skills, which is something that is evident in most DR courses. 6 Self-management: Designed to ensure that legal education addresses some of the affective dimensions of student learning with the intention of supporting student to be come careful, efficient, concerned and curious learners. Chapter 5: Conflicts and disputes as Lawyers Business Elements in the conflict crucible All DR processes are based on assumptions about the meaning and significance of terminology relating to conflicts and disputes. Conflicts and disputes Conflict Conflict is used to denote situations of tensions, stress or friction among different individuals, groups of countries, accompanied by perceived threats to one or both sides interests and goals, but without any specific presenting claims or overt activities. High conflict is characterised by extreme emotions of anger, fear, frustration and sadness, desire for revenge, punishment and vindication. High conflict may be associated with conflict-prone individuals, such as narcissist or those with mental health problems. Dispute Disputes can emerge out of conflict situations where one party opposes what the other actively proposes to do or achieve. Dispute is a situation of greater specificity, intensity and legal relevance than conflict. Complaints and grievances Complaint is usually associated with consumers or clients alleging wrongdoing or irregular practices by business, government or other service providers. Usually complaints can be dealt with before becoming a dispute but if the complaint is ignored, denied or poorly managed, it may escalate to a dispute. Grievance is used to refer to allegations made by employees about employers, supervisors or other employee, and may give rise to a dispute. The participants in conflicts and disputes Avoid use of plaintiff and defendant in DR to avoid parties being stereotypically associated with one of other antagonist, thereby being tempted to act out roles as adversarial characters. Sometimes refer to parties as disputants which is an umbrella terms for all those involved in a dispute and its management, but it has negative connotations. The term parties is most often used. 4

5 Participant is also used where it refers to advisers, experts, witnesses, interpreters and others who play supporting roles. The interveners Magistrates, arbitrators and judges. Where reference is made to a specific process, the designation of the functionary follows from the function e.g conciliator for conciliation When there is a general discussion of DR processes, should use inclusive terms e.g intervener Intervener is use generically for those who, in independent and impartial capacities are engaged in DR endeavours as mediators, adjudicators, expert appraisers etc. Lawyers are engaged as partisan advisers, negotiators and representatives with the responsibility of advancing and advocating the cause of their clients. DR process outcomes Outcome is used to refer generically to the actual or likely results of DR processes. An outcome can comprise of many things: an informal agreement between two individuals accompanied by a hand shake; formal deed of settlement drafted by lawyers and signed by the parties; court order binding one party to specific obligations. The outcomes of DR processes have two potential components: practical arrangements and relationship issues. Settlement refers to situations in which disputing parties assent to specific outcomes through processes such as mediation, rather than having an outcome imposed on them. Accommodation refers to arrangements in which parties in continuing personal, business or organisational relationships make pragmatic commitments to discontinue their conflict and get along with one another by keeping the peace between them. Resolution implies that parties have come to a deeper level of acceptance of outcomes in that they have not only formally consented to them, but also consider the underlying conflicts as having been finalised. Determination refers to the final authoritative decisions, and to the outcomes of adjudicative or determinative processes. It denotes that it is the interveners who are responsible for outcomes from the relevant process, unlike medication and facilitation where parties are responsible. Processes such as litigation, arbitration and adjucation result in determinations. Reconciliation implies that parties have not only resolved their issues and underlying conflict I a deep sense, but have come to understandings of and tolerance for other parties. Other conceptual elements Prevention refers to strategies and systems designed to avoid disputes from emerging from conflict circumstances in which they are imminent. Conflict management is a generic term for embracing all for of dispute resolution, and relates to parties developing protocols for enduring conflict situations where settlements or resolutions are not likely to ensure. Process is a generic term used to refer to an array of DR options. Nature, causes and diagnosis of conflict and disputes Categories of conflicts and disputes Intra-personal/Intra-psychic Where individuals are conflicted about difficult decisions such as moving cities or staying where they are. Individuals might invest heaving in the emotional dimensions of their predicaments and experience difficulties in negotiating with themselves of what action to take. 5

6 These conflicts have little relevance from a legal or DR perspective unless an individual has to make a difficult decision during a DR process. Difficulty making such decision may result in the DR process failing to achieve an outcome. Interpersonal conflict Where two or more individuals are involved in conflict. Where this occurs in organisations it can be designated as intra-organisational conflict. Conflicts between corporations and organisations are called inter-institutional conflict. International conflict is conflict between nation states and groupings of states. Bilateral conflict: two individuals or institutions Multi-party conflicts: three or more entities. Other conflicts Pseudo conflict is where parties perceptions or expectations are false or based on incorrect fears or unjustified apprehensions, and correction of the errors through information or explanation will resolve the situation. False conflicts are based on stereotypes about others in terms of their personal or group attributes e.g refugees and security officials Meta-conflicts are conflicts about conflicts: where an original conflict gives rise to further layers of conflict as the disputants and their advisers use threats, aggression and delays with the tactics themselves becoming additional conflicts. The nature and dimensions of conflicts and disputes Conflicts and disputes are not static in nature they tend to be living organisms involving internal dynamics and fluctuating environmental pressures. Conflicts may be static for a period of time until there is an even that brings the conflict to the surface. Some commentators refer to 3 aspects (dimensions) of any conflict: The cognitive: involves perceptions, beliefs and understandings of those in conflict; The emotional: involves the subjective feelings of people in conflict situations; The behavioural: comprises the external and observable actions which parties in conflict taking in expressing their feelings, articulating their views on the situation s rights and wrongs and pursuing action to meet their needs. The emotional and psychological dimensions of conflict are related to the grieving process which parties undergo after a significant loss (i.e lose a job). A person is not able to participate authentically in the DR process until they have experienced the emotions associated with grief (i.e shock, denial, sadness) and reached the acceptance stage. Parties beliefs and the meanings they attach to past events affect all the dimensions of conflicts and disputes. An understanding of dimensions of disputes, of their potential to escalate and the loss and grief of conflicted parties, provides insight into what DR process might be appropriate. Cognitive and social biases in conflict Many cognitive and social biases automatically influence human decision-making without consciousness of the biased party or awareness on the other side of any intervener involved. These heuristics can contribute to the escalation of a conflict or jeopardise its outcome to the bewilderment of all. There are many cognitive biases and heuristics: Confirmation bias: involves disputants being selective in how they construe the facts, the evidence and the legal arguments in a conflict situation. They do this by accepting and emphasising only those factors which are best for them, as these reinforce their pre-conceived views on the merits of their case. 6

7 Fundamental attribution error: denotes that parties in conflict are inclined to attribute the other side s conduct predominantly to their faulty character or personality, with a lesser attribution to the circumstances in which they acted. However, in relation to their own conduct they give substantial attribution to the external circumstances and only minor amount to their own culpability. Positions and interests in conflict situations Positions refer to what people proclaim they want, their expressed objectives, which are often articulated in quantitative terms (their desired outcome in a dollar figure). Interests refers to the reasons why someone is putting forward and justifying their positions, objectives or desired outcomes (i.e personal security, business reputation). Identifying interests is more conducive to parties designing options for resolution. By identifying their own and being exposed to the other side s interests, parties in dispute may discover that certain interests are shared and that several needs may be satisfied without having to engage in compromise. Dispute diagnosis and interventions The dispute diagnosis function is designed to provide understanding of the relevant history, circumstances and dimensions of a dispute as a basis for indicating what general forms of DR process might be appropriate, and what specific interventions and techniques might be appropriate with a particular process (i.e fact-finding). Diagnosis may need to be revised in light of new information or trial, error and review of specific interventions. The causes of disputes are potential factors in relation to their intensity and complexity e.g value disputes can derive from an individual or group s self-worth and can be articulated as matters of priciple on which compromise is portrayed as being impossible. They may be easier to manage if they can be recast in terms of tangible factors such as resources, money or time. 7