LISTENING TO THE OTHER SIDE: LAWYERS IN ADR*

by: RACHAEL BRECKON

THE USE OF THE WORD “alternative” when describing out of court dispute resolution has been “unfortunate” according to mediator Warren Sowerby.

Bankside Chambers barrister and mediator Mr Sowerby, who can boast more than 1,900 mediations with over 15,000 participants, argues the word “alternative” has given rise to the suggestion that it is an alternative and it is not.

“It is really just part and parcel of, and an extension of, the litigation process,” Mr Sowerby says.

While being careful to iterate that judicial decision making is the “bedrock of any civilised society” he explains that settling litigation through negotiation is not new and has occurred over the centuries.

“The mediation process has simply introduced the use of a facilitator into the parties’ private negotiation process, when they believe such a process and person will be helpful,” Mr Sowerby says.

However, lawyers who desire to pursue a career in ADR should not take the idea it is an extension of the litigation process to mean they can seamlessly shift from adversarial practice to mediation or arbitration.

For many lawyers, arbitration - where two or more parties agree to submit all or certain disputes between them to an independent person called an arbitrator for a binding decision - fits more naturally into their legal training.

However, mediation is a much more signification deviation from the adversarial techniques generally used by lawyers.

Commercial mediator and 2012 New Zealand Law Awards Mediator of the Year Geoff Sharp left his position as a litigation partner at Bell Gully a decade ago to pursue a career as a mediator.

He says lawyers interested in a career in mediation need to be “very clear” about the difference in the role of a mediator.

Lawyers need to “effectively change their instincts and sit in the middle of the conflict and not on one side of it and this is very difficult to do in real life,” Mr Sharp says.

“Because if you have been in practice for 25 years, then your instinct is to advance your client’s case, and not necessarily see the merits in both sides. The mediator does exactly the opposite.”

Deborah Hart, executive director of the Arbitrators’ and Mediators’ Institute of New Zealand speaks along similar lines to Mr Sowerby, that the relationship between ADR and law are not completely “alternative” processes.

“Most often mediation occurs in the shadow of the law,” says Ms Hart, who also started her career as a lawyer.

However, lawyers need to understand what ADR processes are and have an understanding of these processes as they are increasingly being used, she says.

It is a common myth that as a lawyer you can just be a mediator without any further training, according to Ms Hart.

“To gain a law degree you do not have to have learned these alternative processes.”

“You need to do the things you would do in setting up a separate career. You need to study it. You need to have a business plan,” Ms Hart says.

According to Ms Hart, to be a good mediator you need to be “expert in finding common ground and working with people to help them come to a resolution.”

Interim chief executive of LEADR New Zealand, Ava Gibson says the practitioner acting as mediator needs to be “impartial and manage a process that moves people from positions to their interests. This involves being able to deal with the expression of emotions, as well as information.”

Ms Gibson says because a mediator also has no advisory or determinative role in regard to the content of the dispute or the solution, this can be a challenge to people who are legally trained.

“Lawyers’ training requires them to analyse situations according to legal principles to establish right. Mediated outcomes may include provisions which are beyond the outcomes that are available in a courtroom, [and] which have value to the parties,” she says.

“Sometimes this can be a challenge to a lawyer, who may see the outcome as being different from a pure application of rights.”

Characteristics of a good ADR practitioner

• Excellent listening skills

• Flexibility

• Creativity

• Non-judgemental approach

• Ability to sit in the middle of other people’s conflict

• Ability to build quick client rapport

• Do not need a template, or formula for resolution

• Focus on resolution not blame

• Ability to close deals

• Work on a case-by-case basis

• Ability to empathise

• Great communication skills

• Ability to work with uncertainty and limited control (the ADR practitioner controls the process but the content and the outcome are in the hands of the parties).

THE UNCLEAR ROAD TO AN ADR CAREER

ANNABEL SHAW SEES THE “IRONY” in the fact that she is considered a young mediator.

Ms Shaw, who is in her 30s, is considered a young mediator, and it is a difficult field to crack for those in the earlier years of their career.

She has been working as an employment mediator since 2007 and is now also on the board of the professional mediation body, LEADR.

Before that, she worked as a lawyer, negotiator, arbitrator, investigator, dispute resolution and communication trainer and a senior associate at one of New Zealand’s largest commercial law firms.

While working as a lawyer, Ms Shaw found herself sitting in a divorce case thinking there has “got to be a better way than this” and began to explore a career in mediation.

She said it soon become clear that there wasn’t really a path, so she followed her nose and studied (she now holds a post graduate diploma in dispute resolution from Massey University), read up on mediation and networked with mediators. She also moved her legal focus to employment law and employment investigations, which more commonly uses ADR techniques.

So what Ms Shaw did was “create” a pathway into ADR for herself. And for young professionals wanting to pursue a career in mediation it is probably still the best way to go about getting into it, she says.

It is a hard profession to break into generally but “particularly challenging for younger people. I think that is probably because there is a perception that mediators need to be somebody with age and experience.”

However, Ms Shaw disagrees with this philosophy and argues: “What mediating requires is maturity and I don’t think that necessarily comes with age.”

ALTERNATIVE DISPUTE RESOLUTION IN THE COURTS

ALTERNATIVE DISPUTE Resolution continues to play a larger role in the New Zealand court system.

ADR approaches hold an important place within our civil justice system. They provide useful mechanisms for resolving disputes, particularly where parties wish to maintain relationships and confidentiality. Often ADR is also cheaper and results in more creative, innovative and enduring settlements, says a Ministry of Justice spokesperson, who did not wish to be named.

One of the most recent integrations of ADR was through the review of how judicial settlement conferences are allocated to proceedings. The review led to the decision that a judicial settlement conference will only be allocated where private mediation is deemed inappropriate. The new rules came into force on 4 February 2013.

When asked for an overview of the role of ADR within the formal court processes, the ministry said mediation was currently used for many care of children cases in the Family Court and in Disputes Tribunal matters resolved by referees, who must first attempt to mediate an agreement between the parties.

Mediation is also available in the Environment Court and elements of the civil court system are designed to encourage resolution by parties themselves, for example, graduated fees and the District Court Rules around the exchange of information, according to the ministry.

Centre for Research Evaluation and Social Assessment researchers Kay Saville-Smith and Ruth Fraser prepared research on ADR in the courts titled: Alternative Dispute Resolution: General Civil Cases in June 2004.

The report, which LawTalk believes to be the most recent carried out by the ministry, looked in detail at the potential disadvantages and advantages of ADR in the courts. This included focus groups and interviews with lawyers.

According to the report lawyers “repeatedly expressed the view that ADR had potential benefits for the court system through reducing pressure on the courts by reducing filings, encouraging early settlement, narrowing the issues that require adjudication by the courts and developing solutions to disputes that are less likely to be subject to re-litigation.”

An accompanying survey of 125 lawyers showed participants felt comfortable with the courts ordering parties to at least some, although not necessarily all forms of ADR.

At the time, lawyers felt significantly less comfortable with the notion of the courts ordering parties to arbitration than ordering them to mediation. Only 22.2% of respondents felt court orders to arbitration were acceptable compared to 53.7% who accepted the notion of the court ordering parties to mediation, the report states.

However, the report was careful to note that even when, in principle, lawyers felt comfortable with greater promotion of ADR, they were also careful to express the view that the court system has an obligation to provide disputants with access to justice and it would be inappropriate to exclude people from court adjudication if they wished to pursue the resolution of legal disputes through that process.

IN NUMBERS

91%

BELIEVED THAT ADR WOULD REDUCE COSTS FOR LITIGANTS

88%

BELIEVED THAT ADR WAS JUSTIFIABLE BECAUSE IT WOULD INCREASE SETTLEMENT

78%

BELIEVED THAT ADR WAS JUSTIFIABLE BECAUSE IT WOULD REDUCE TIME TO SETTLEMENT/DISPOSAL

44%

REPORTED THAT THEY BELIEVED ADR WOULD REDUCE PRESSURE ON THE COURTS

IN THE COURT OF PUBLIC OPINION

CROWD-SOURCED DISPUTE RESOLUTION

ARGUMENTS OVER THE YEAR CAPTAIN Cook first set eyes on Aotearoa, or what the F in JFK stands for[1] are now settled online. However questions remain over whether digital natives will be comfortable resolving personal life disputes on the world wide web.

Websites addressing personal questions are already cropping up all over the web.hetexted.com enables users worldwide to post a “text from a guy” and visitors to the site can vote if they think:

a) he’s into you;

b) he’s not into you; or

c) the verdict is still out.

While hetexted.com (which also has an array of “bros” you can ask for confidential advice) initially seems a far cry from formal Alternative Dispute Resolution, this platform is cropping up online.

Canadian internet start-up eQuibbly launched in 2012 with the idea it would solve disputes through ‘crowd-sourced’ mediations, as well as more traditional (though online) arbitrations.

When eQuibbly began, it allowed both sides to post disputes on the site and invited the other side to give their perspective.

The idea was: “As a collective, you trust your friends and neighbours to provide you with accurate and useful information every time you look something up on Wikipedia and TripAdvisor, and to make the appropriate decision when choosing your government, which controls so many aspects of your life. So why not have them help you resolve your disputes?”

Like hetexted.com, anyone in the world could put in their two-cents over who they thought was right or wrong.

The formula didn’t appear successful, and links to the publicly listed disputes now go to a holding page, where eQuibbly states: “after much thought, [they] decided to concentrate [their] efforts on private and confidential dispute resolution rather than public dispute resolution using crowdsourcing.

“We still welcome your use of eQuibbly to resolve disputes in a virtual private room via mediation or arbitration. You may wish to hire a professional listed on eQuibbly to help you resolve a dispute, or you can do so with your own mediator or arbitrator.”

eQuibbly is one of numerous websites that have been established to help resolve dispute online.

Online Dispute Resolution (ODR) has been adopted by the European Union.

In March this year, the European Parliament voted in ADR to be used by EU customers to resolve their disputes out-of-court.

The European Commissioner for Health and Consumer Policy, Tonio Borg, touted the new system as “a simple, fast and low-cost manner, and also for traders who will be able to keep good relations with customers and avoid litigation costs … which will significantly improve everyday life for consumers across Europe”.

According to the ODR regulation, an EU-wide online platform will be set up for handling consumer disputes that arise from online transactions. The platform will link all the national alternative dispute resolution entities and operate in all official EU languages. The ODR platform is expected to have been rolled out and operational by the end of 2015.

____________________________________________________________

* Published with kind permission of Law Talk, Law Society of New Zealand.

Endnotes:

[1] Caption Cook first landed eyes on Aotearoa in 1769 and the F is for Fitzgerald – you can put your smart phone away.