The adversarial method of dispute resolution has been tried and tested throughout the common law world and is today still the most common form of dispute resolution in western societies.
Why then is there an ever increasing number of people, both litigants and lawyers, who take the view that the Courts do not dispense justice, they simply provide certainty through the administration of the law?
Judges and magistrates apply the law in the proceedings before them by applying the rules of evidence including the admissibility and relevance of evidence to limit and restrict what can be put before the Court. The result is that litigants often feel that the decision of the Court has been made based on less than their “whole story”. The result is that the parties consider that they have not been heard and the decision imposed on them is not “fair” or appropriate.
Courts and the adversarial system are however but one tool in the dispute resolution toolbox. There are alternatives!
Alternate Dispute Resolution
Australia is recognised internationally as a leader in the field of mediation. Mediation has been used in Australia for more than 30 years to help to resolve disputes in almost every sphere of disputation from international issues to neighbourhood disputes with a significant degree of success.
Alternate dispute resolution practitioners are skilled negotiators and facilitators, who are able to identify commonalities between parties who are in dispute. The practitioners then guide the parties through a process that does focus on their entire “story” to reach a settlement of the issues between them.
When asked about mediation and other forms of alternate dispute resolution, most litigation lawyers commonly say: “Yes, I do that all the time. Most of my matters settle out of court!”
That may very well be true however, what is it that lawyers do when they engage in these settlement negotiations?
The following outlines the process that is most commonly engaged in by lawyers who conduct settlement negotiations:-
Party A asserts that their claim is worth not less than $XX and their argument is supported by legal precedent. Apart from that there are a number of serious faults in the other side’s evidence that they appear not to be able to address satisfactorily.
The other side of course, denies that there are any flaws in their evidence. They say instead that party A’s claim is worth but a fraction of $XX claimed and that the legal authorities referred to by party A’s counsel are all distinguishable from the current matter. Apart from which, if party A does not accept party B’s offer of settlement, party B will be asking the court for costs on an indemnity basis for one reason or another.
Simply put, this is classical “positional bargaining”. It is employed by litigation lawyers in settlement conferences and settlement negotiations. It is conducted between the lawyers, often in the absence of their clients who are the parties central to the issues.
Central to this form of negotiation is the threat that if the other side refuses to accept the offer currently on the table then the matter will go to the judge or magistrate to be decided at the peril of the other party having an order for costs made against them.
Alternate dispute resolution practitioners will say that there is a better way of resolving disputes that actually addresses the needs and interests of the disputing parties. More importantly, it allows the parties themselves to discuss the issues and to explore the possibilities of settlement themselves.
In the facilitative model of mediation however, mediators are handicapped in that they are required to be neutral, impartial and not to offer or provide advice to the parties in dispute.
The new kid on the alternate dispute resolution block is Collaborative Dispute Resolution (“Collaborative Law”). The Collaborative process was started in 1990 by a disgruntled divorce attorney from Minnesota, called Stu Webb.
The Collaborative process is designed to “resolves disputes respectfully”. It has been described as is law without litigation and mediation with advice. Collaborative Professionals are committed to assisting the parties to resolve their own disputes with all of the benefits of mediation plus the benefit of legal advice through the process.
Collaborative Law is a new tool in the alternate dispute resolution practitioner’s toolbox. It is different from mediation in that the Collaborative Lawyers are the ally of their client. The Collaborative Lawyers are also an advocate for their clients and will advise their clients of the legal issues affecting the issues in dispute but unlike their litigating cousins, Collaborative Lawyers will not go to court.
The Collaborative Lawyers and their clients all contract at the commencement of the matter that the lawyers are engaged as “settlement counsel” and will withdraw from the matter if the settlement negotiations break down. This has the effect of focusing the parties on finding solutions to the matters in dispute rather than engaging in the posturing associated with litigation. Further, the negotiations may be brought to an end if either side uses the threat of litigation as a means of coercion to achieve their goal.
This means that instead of creating an atmosphere of intimidation and fear where the lawyers control the discussions under the threat of a court imposed outcome, the collaborative environment is one in which the parties and their Collaborative Lawyers are committed to the resolution of the dispute through the use of principled negotiation.
The settlement of the dispute between the parties therefore is not the by-product of the litigation process where the parties involved are willing to accept the fallback position of a court imposed outcome but is instead, the stated aim and purpose of the process from its inception.
Unlike litigation which is focused on the past to identify the perpetrator of some wrongful act or breach and to apportion blame, the Collaborative Process is future focused. The parties are encouraged and guided through a process in which their needs and interests are identified, options to meet or satisfy those needs and interests are explored and developed and the parties effectively design their own outcome to their dispute with the benefit of the advice and skills of their Collaborative Lawyers.
The Collaborative Lawyers assist to facilitate these negotiations unlike litigation which destroys the lines of communication between the disputing parties by the use of a lawyer directed process which by-passes the parties. Instead, the Collaborative Lawyers work to re-establish those lines of communication between the parties and to help them to conduct the negotiations themselves.
The Settlement Team
The concept of a “settlement team” is one of the indicia of the Collaborative Model of dispute resolution.
From the outset, the lawyers and their clients are committed to reaching a negotiated settlement of the dispute confronting them. They are all part of the “settlement team”.
It is common in litigated disputes for vast quantities of documents to be generated. Detailed pleadings are prepared and filed supported by encyclopaedic affidavits painstakingly prepared from evidence provided by the parties to the dispute and their army of witnesses at huge cost.
Discovery is made and sought resulting in increased mountains of documents. Then subpoenas are issued and served. More documents!!!
The collaborative settlement team on the other hand generates little in the way of documentation even in complex commercial matters. The parties are required by the Participation Agreement signed by them at the outset of the matter, to make full, frank and honest disclosure of all relevant documents in their possession or control. These documents are tabled at the four way meetings of the settlement team but no notices for discovery, subpoenas or pleadings are prepared or filed.
Importantly, the settlement negotiations are privileged and confidential.
Multi-professional and Interdisciplinary Teams
In California and in other parts of the USA, it is common for multi-professional or interdisciplinary settlement teams to include other expert professionals such as financial advisers, surveyors,child consultants, and others from the outset. Known as the “Interdisciplinary model”, the clients engage a “full team” of experts and are prepared by them so that they can more effectively engage in the four way meetings before they become involved with their lawyers.
In Canada, the United Kingdom and Australia it is less common for the settlement team to include such other experts from the outset. However part of the Collaborative method of dispute resolution is the ability to bring experts needed to assist the parties when the parties decide to do so. This type of settlement team is referred to as the “referral model”.
These experts form part of the settlement team and as such they are bound by the same rules of impartiality and good faith negotiation. They are therefore not able to act in their professional capacity for either party in the event that the settlement negotiations fail. Like the Collaborative Lawyers, they too must cease acting further for the parties or either of them.
The type of expert that may be brought into the team depends on the nature of the dispute between the parties. An environmental scientist may be brought in by the parties to a dispute relating to an environmentally significant development; a building engineer in a construction matter; an expert surveyor for a property matter and so on.
The expert is therefore the settlement team’s expert. As such their role is to employ their particular expertise in a way which will best advise all of the parties on how to address or solve a particular issue(s). Compare the situation in a litigated matter where experts are engaged by both sides of the dispute. These experts are then expected to provide as their expert opinion a view that best suits their client’s argument or position.
It is not uncommon in adversarial proceedings for parties, at significant cost, to seek the opinion of a number of experts before finding one who they feel will advance their client’s cause. A consequent issue of credibility may then arise.
In Collaborative Law an impasse between the parties may also be addressed by engaging a mediator to assist the parties to negotiate a resolution for a particular issue. Further, an opinion may be sought from counsel on a particular issue if the parties consider that they need the assistance of such advice.
The Collaborative Process is therefore extremely flexible. Able to meet the requirements of the parties without the concern of having to meet court imposed deadlines.
In theory, any dispute that is capable of being litigated is capable of being resolved through the Collaborative Process. Family Lawyers in the USA, Canada, UK, parts of Europe and Australia have been quick to recognise the benefits of Collaborative Law. However, other civil and commercial issues as diverse as disputes between franchisee/franchisor, lessor/lessee, employer/employee, contracts for the supply of goods or services, disputes in relation to Wills and estates and building matters to name but a few, are all well suited to the Collaborative process.
Collaborative Practice is not a panacea; it is another dispute resolution tool for the use of dispute resolution professionals, a further tool to be included in their toolbox together with mediation, conciliation, arbitration and litigation.
It does however, require the appropriate training of lawyers and other professionals wanting to engage in Collaborative Practice to ensure that the interests of clients are protected and to preserve the integrity of the process.