Australian Dispute Resolution: Law and Practice Chapter 1 PDF

Chapter 1 Lawyers, Lawyering and Dispute Resolution Chapter con...

Chapter 1 Lawyers, Lawyering and Dispute Resolution Chapter contents Introduction1.1 The profession of law 1.3 DR and the nature of legal work 1.16 Lawyering, DR expertise and upholding the rule of law 1.32 The challenges of change for the legal profession 1.40 DR as a response to the challenges facing the legal profession 1.53 Legal education and DR: preparing lawyers of the future 1.58 Legal education, the ‘Priestley 11’ and DR 1.63 DR and the threshold learning outcomes 1.69 Conclusion1.80 Introduction 1.1 This book is concerned with what it means to be an Australian lawyer in the 21st century. Our focus is on dispute resolution (DR) knowledge, skills and values as increasingly important components of lawyering expertise, and critical to effective contemporary legal practice.1 To set the scene for understanding the increasing importance of DR (particularly non-litigation dispute resolution (NLDR) processes) for legal practice, this first chapter considers the nature of 21st century lawyering in Australian society and celebrates DR practice as central to both transactional and DR Copyright © 2016. LexisNexis Butterworths. All rights reserved. lawyering, and important to the future viability of the legal profession, not only in Australia but also globally. 1.2 First, we consider the nature of the Australian legal profession. We then explore the philosophical framework of the practice of law, including the rule of law and its relevance to the role of lawyers as dispute managers and resolvers. Next, we consider 1. Neil McMahon, ‘Too Many Lawyers: Future-Proof Your Degree’, Sydney Morning Herald (online), 3 August 2015,. 3 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 3 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  1.2 Australian Dispute Resolution: Law and Practice the current tide of change facing the legal profession and explore the implications of these developments for the way in which legal services are delivered. We demonstrate that DR knowledge, skills and attitudes are critical factors in the legal profession’s response to the challenges of change. Finally, we highlight that as DR is so central to the future of legal practice, it should also be central to every law graduate’s experience of legal education. For this reason we argue that DR should be included in the suite of subjects that are compulsory for admission to the legal profession. The profession of law 1.3 The legal profession is ancient and ubiquitous — found in various iterations in different jurisdictions and cultures all around the world.2 China is recognised as having one of the oldest legal systems, which according to legend commenced around 2800BC in the reign of Emperor Fuxi.3 Some form of lawyering is a common element of the social, political and governing structures of most societies and all sovereign states. Lawyers provide legal advice, representation and advocacy in service of individual clients, but they also serve society and the public good, particularly in liberal democratic societies where the rule of law provides foundations for the operation of the social, political and legal systems.4 1.4 A career as a lawyer can take many different forms, but most commonly lawyers practice as solicitors or barristers in the private sector, government or the community legal sector.5 Membership of the legal profession requires legal expertise — specialist legal knowledge, skills and attitudes. Simply knowing what the law is, that is, possessing knowledge of the doctrinal substance of the law, has never been sufficient for successful legal practice in any context. To be effective advisers and advocates, lawyers must not only know the law, they must also be able to apply it to their client’s specific transactional or DR needs and interests. Putting doctrinal law into practice, applying the law in concrete circumstances, involves the deployment of a range of legal skills — legal thinking and reasoning skills, legal research skills, communication and collaboration skills, and self-regulation skills.6 In addition, successful lawyering 2. See, eg, Roscoe Pound, Lawyers from Antiquity to Modern Times (West Publishing Co, 1953); Robert J Copyright © 2016. LexisNexis Butterworths. All rights reserved. Bonner, Lawyers and Litigants in Ancient Athens: The Genesis of the Legal Profession (Benjamin Blom, 1927); John A Crook, Law and Life of Ancient Rome (Cornell University Press, 1967); James A Brundage, ‘The Rise of the Professional Jurist in the Thirteenth Century’ (1994) 20 Syracuse Journal of International Law and Commerce 185; John Hamilton Baker, An Introduction to British Legal History (Butterworths, 3rd ed, 1990); R Blain Andrus, Lawyer: A Brief 5,000 Year History (ABA Book Publishing, 2009). 3. Charles Chao Liu, ‘China’s Lawyer System: Dawning Upon the World through a Tortuous Process’ (2002) 23(4) Whittier Law Review 1037, 1039. See also Philip CC Huang, Code, Custom, and Legal Practice in China (Stanford University Press, 2002). 4. See Geoffrey de Q Walker, ‘Rule of Law and the Democratic World Order’ in Suri Ratnapala and Gabriel A Moens, Jurisprudence of Liberty (LexisNexis Butterworths, 2nd ed, 2010). 5. See Nickolas James and Rachael Field, The New Lawyer (Wiley, 2013) ch 1. 6. Sally Kift, Mark Israel and Rachael Field, Learning and Teaching Academic Standards Project: Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010, Australian Learning and Teaching Council. 4 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 4 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  Lawyers, Lawyering and Dispute Resolution 1.7 requires well-developed professional attitudes and values, such as an ethical disposition and professional judgment. 1.5 In Australia’s early legal history the process of acquiring the legal knowledge, skills and attitudes necessary for the practice of law occurred predominantly through an apprenticeship model.7 In the 20th century it became more usual for doctrinal legal knowledge to be learned at university, with practical skills and professional values and attitudes learned later ‘on the job’.8 At the time of writing, Australia has 38 law schools offering both undergraduate level (LLB) and post-graduate level (JD) law degrees.9 Generally, in the 20-teens those wishing to enter the legal profession gain a foundational knowledge of the core substance of the law at law school (represented by the Priestley 11 core subjects, the study of which is required for eligibility for admission to practice)10 and also acquire there some basic legal skills (such as legal research, analysis and reasoning). 1.6 Law school is then followed by, or integrated with, some form of practical legal training.11 Only with these two components of legal education satisfied is a law graduate in a position to establish to a professional body that they are ready for admission. Admission to the profession also requires applicants to establish that they are ‘currently of good fame and character’ and a ‘fit and proper person’ to be admitted.12 The final step before entering the practice of law is to gain a practising certificate, which is effectively a licence to practice issued by the Law Societies and Bar Associations in Australia’s states and territories.13 1.7 Lawyers around the world have long maintained that the legal profession is a ‘learned and noble’ one.14 It is certainly a profession with an honorable history of protecting and advocating for people’s rights and liberties, fighting for access to justice, 7. James and Field, above n 5, 22–4. For further discussion of the history of Australian legal education see also Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014) ch 2. 8. Ibid. 9. For a current list of Australia’s Law Faculties and their Deans see the Council of Australian Law Deans. The undergraduate law degree is referred to as the LLB, standing for Bachelor of Laws (in Latin Copyright © 2016. LexisNexis Butterworths. All rights reserved. Legum Baccalaureus). Bachelor degrees are at level 7 standard on the Australian Qualifications Framework (AQF). The JD, standing for Juris Doctor, is a graduate law degree, at level 9 of the AQF. See Australian Qualifications Framework. 10. See the materials available through the Law Admissions Consultative Committee. 11. Practical legal training is offered by a number of Australian Law Faculties such as Queensland University of Technology and Bond University. It is also offered through independent institutions such as the College of Law and Leo Cussens Institute. Some Law Faculties such as those at Flinders and Newcastle Universities integrate the practical legal training requirements into undergraduate degree offerings. 12. See, eg, Legal Profession Uniform Admission Rules 2015, s 17(1). 13. In Victoria, eg, practicing certificates are issued by the Legal Services Board pursuant to the Legal Profession Uniform Law Application Act 2014 (Vic). See. 14. See, eg, Michael Kirby, ‘Billable Hours in a Noble Calling’ (1996) 21 Alternative Law Journal 257 and Warren K Winkler, ‘Civil Justice Reform — The Toronto Experience’ (2007) 39(1) Ottawa Law Review 99. 5 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 5 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  1.7 Australian Dispute Resolution: Law and Practice ensuring that disputes are resolved through appropriate and fair means, and assuring due process in the way the state deals with its citizens. Nevertheless, lawyers often appear to be on the wrong end of jokes about dishonesty and a lack of ethics, and the virtue of legal practice is not infrequently questioned. Perhaps this is because the reality of the practice of law, not unlike the banking profession, is that while on one hand it is a profession that serves society, on the other it is also a profit-making business enterprise.15 1.8 Nonetheless, admission as a member of the legal profession is considered to be a significant societal privilege.16 Being a lawyer brings with it altruistic benefits, such as the satisfaction of helping people and contributing to a safe, just and ordered society. In addition, the profession offers its members a relatively high level of prestige and social standing, and the opportunity to make a good living.17 To better understand why a career in the legal profession is considered to be an honorable one, and why some even see it as a vocation or calling to practice,18 it is helpful to reflect briefly on the nature of professions generally and ways in which they are different from other occupations. 1.9 There is a vast body of literature on the sociology of professions,19 although no single definition of a ‘profession’ per se. Nevertheless there are some consistent characteristics common to most professions. Thus a modern profession is generally based on ‘ownership of a field of knowledge, autonomy over practices, control over entry and credentials, state recognition, and social status’.20 Members of a profession experience high levels of professional autonomy, engage in intellectually rigorous work and are often in a relationship of trust and confidence with their clients.21 More than this, they ‘profess’, or in other words publicly declare or stand for, the accountable and ethical practice of their discipline in the service of others.22 Moreover professions not only offer high levels of technical competence in the provision of services, requiring specialist knowledge and expertise, but the practice of that expertise is reliable and 15. See, eg, David Barnhizer, ‘Profession Deleted: Using Market and Liability Forces to Regulate the Very Ordinary Business of Law Practice for Profit’ (2003) 17 Georgetown Journal of Legal Ethics 203. 16. Winkler, above n 14. 17. Ibid. 18. Edward D Re, ‘The Profession of the Law’ (2000) 15(2) Journal of Civil Rights and Economic Development 109, 111. Copyright © 2016. LexisNexis Butterworths. All rights reserved. 19. A significant body of this literature is referenced in Sharon Roach Anleu and Kathy Mack, ‘The Professionalisation of Australian Magistrates’ (2008) 44(2) Journal of Sociology 185. See also Robert Tobias, ‘Continuing Professional Education and Professionalization: Traveling Without a 26 Map or Compass?’ (2003) 22(5) International Journal of Lifelong Education 445; Harold L Wilensky, ‘The Professionalization of Everyone’ (1964) 70 American Journal of Sociology 137–58; Terence Johnson, Professions and Power (Heinemann, 1972); Magali Sarfatti Larson, The Rise of Professionalism: a Sociological Analysis (University of California Press, 1978); John Archer Jackson, Professions and Professionalization: Volume 3, Sociological Studies (Cambridge University Press, 2010). 20. Freidson notes the contemporary common denominators of a profession include: ‘expertise, credentialism and autonomy’: Eliot L Freidson, Professionalism Reborn: Theory, Prophesy and Policy (Polity Press, 1994) 154. 21. See Paul Finn, ‘The Fiduciary Principle’ in Timothy Youdan (ed), Equity, Fiduciaries and Trusts (Carswell, 1989) 1 and Bernard Barber, The Logic and Limits of Trust (Rutgers University Press, 1983). 22. ‘The word profession is derived from the Latin professio or professionem which means to make a public declaration’: Re, above n 18, 110. 6 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 6 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  Lawyers, Lawyering and Dispute Resolution 1.12 trustworthy because its practitioners are regulated by formal systems of ethics and informed by fiduciary obligations and responsibilities.23 Members of professions must be ethical in their provision of services to clients, they must have the confidence of those whom they serve, as well as their peers, and they must be committed to the public welfare.24 Failure to live up to these standards can result in removal from a profession.25 1.10 The legal profession professes commitment to the rule of law which provides a foundation for civic systems of law and government, serving society by supporting social stability and order, giving ‘vitality to peace, freedom and decency’, and ensuring personal freedoms.26 For this reason members of the legal profession engage in an enterprise that is more than simply a commercial industry driven by a market ideology of the maximization of individual gain through the provision of services for profit.27 As Justice Kiefel of the Australian High Court has said: ‘Practising lawyers do not just run a business, selling their skills and services to clients in return for fees. The practice of law is a profession and this sets it apart from other, commercial, enterprises’.28 1.11 Nevertheless, the practice of law is simultaneously both a profit-making business and a profession and it is therefore influenced, if not driven, by the reality of market forces. It could be said that the legal profession is a ‘market organisation whose legitimacy rests on a social bargain’, an exchange of status and privilege resulting from intellectual and organisational standing for ‘ethical and altruistic service’.29 However, while the social bargain struck by the legal profession is not a simple or straightforward one, and while professions may well be criticised in modern society for being part of a neoliberalist privileging of the rationality and logic of the market,30 the social and political significance of the legal profession, both historically and in contemporary society, cannot be denied. 1.12 Admission to the legal profession requires a person to be of good character; to endure and succeed in the profession lawyers need a moral compass and to ‘conform to the customs and character of the community’.31 On admission to the profession, lawyers 23. Barber, above n 21, 112. 24. Ibid. 25. For example, the Legal Services Commission (LSC) of Queensland is empowered under the Legal Profession Copyright © 2016. LexisNexis Butterworths. All rights reserved. Act 2007 to initiate and prosecute disciplinary proceedings against lawyers and law practice employees. 26. Gerard Brennan, ‘The Role of the Legal Profession in the Rule of Law’ (Address at the Supreme Court, Brisbane, 31 August 2007) 1. 27. Barber discusses the notion of market ideology in these terms, above n 21, 108. For a seminal discussion of contemporary ‘market ideology’ in the United States context see Leonard Silk and David Vogel, Ethics and Profits: The Crisis of Confidence in American Business (Simon and Schuster, 1976). 28. Susan Kiefel, ‘Ethics and the Profession of the Lawyer’ (Address to the Queensland Law Society: The Vincents’ 48th Annual Symposium, Brisbane, 26–27 March 2010) 1. 29. Joanne Bagust, ‘The Legal Profession and the Business of Law’ (2013) 35 Sydney Law Review 27, 27–8 referring to Marion Crain, ‘The Transformation of the Professional Workforce’ (2004) 79 Chicago-Kent Law Review 543. 30. Ibid 28 referring to Pierre Bourdieu, The Essence of Neoliberalism (Le Monde Diplomatique, 1998) (English ed). 31. Kiefel, above n 28. 7 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 7 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  1.12 Australian Dispute Resolution: Law and Practice swear, or declare and affirm, that they ‘will truly and honestly conduct’ themselves and that they ‘will faithfully serve in the administration of the laws according to the best of (their) knowledge, skill and ability’.32 It has been said that belonging to the legal profession ‘signifies a cluster of values that are palpable’ including ‘scholarship, honour, personal integrity, leadership and independence, pride in our justice system, and generous pro bono public service’.33 For this reason ‘the legal profession stands both apart from, and is a part of, our wider society’.34 1.13 What does the Australia legal profession look like? 35 At the time of writing, the most recent national snapshot of the entire profession is that prepared by the Law Council of Australia in 2009 using Australian Bureau of Statistics data from a survey of legal services between 2007–08. At that time the legal services sector employed 99 696 people, generated an annual income of $18 billion, and undertook an estimated $238.2 million worth of pro bono legal work. The professional practice of lawyers was divided as follows: 85.2 per cent worked in legal services such as private law firms, 5.2 per cent were either barristers or employed by barristers, 4.5 per cent worked in the offices of government solicitors or public prosecutors, and 5.1 per cent were employed in community legal services, including legal aid commissions, Aboriginal legal services and community legal centres. 1.14 In 2014 the New South Wales Law Society commissioned a national demographic profile of the practising profession.36 The profile comprises a demographic breakdown of solicitors represented by each of the eight state and territory Law Societies in Australia. This is the second national profile following a similar study in 2011. The demographic profile indicates a number of important trends including that: the legal profession in Australia is growing; solicitors are continuing to work later in life; the gender profile of the profession is becoming more even; there has been growth in larger firms and in the corporate and government sectors, but a decrease in sole practitioner firms; and Aboriginal and Torres Strait Islander Australians remain under-represented in the profession with only 0.8 per cent nationally identifying as being of Aboriginal or Torres Strait Islander status. 1.15 In 2015 the Australian Bar Association released a statistical profile of Australian barristers and membership of Australian Bar Associations as at 30 June 2015.37 That Copyright © 2016. LexisNexis Butterworths. All rights reserved. profile indicated that at that time there were 6005 barristers in Australia, of whom 32. See, eg, Legal Profession Admission Board of New South Wales, Admission Ceremony Factsheet (25 November 2014). 33. Winkler, above n 14. 34. Kiefel, above n 28, 3. 35. Law Council of Australia, ‘A Snapshot of the Legal Profession’ summarising Australian Bureau of Statistics survey of legal services 2007–08. 36. The Law Society of New South Wales, 2014 Law Society National Profile Final Report (2015). 37. Australian Bar Association, Australian Bar Association Statistics 2015 (2015). 8 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 8 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  Lawyers, Lawyering and Dispute Resolution 1.19 77 per cent were male and 23 per cent were female. New South Wales and Victoria were noted as having the largest number of practising barristers. DR and the nature of legal work 1.16 Until recently the nature of legal work has been relatively consistent. As Henderson writes, traditional legal practice has generally involved lawyers meeting with clients, talking to them over the phone, writing letters, contracts, memoranda of advice, drafting court documents, and making various in-person appearances on their clients’ behalf.38 These tasks continue, but as we discuss later, the nature of legal service provision is under increasing pressure to modernise and become more effective and efficient. 1.17 Traditionally, lawyering has also been broadly divided into transactional work (which is focused on ‘the formation, negotiation, documentation, or consummation’ of business-related transactions)39 and DR work. This broad division continues with contemporary lawyering.40 In both these roles, whether working transactionally or on the management or resolution of disputes, lawyers are engaged as expert advisers, spokespersons and advocates who negotiate persuasively on behalf of their clients, assisting them to develop options, make informed choices and decisions, and take control of problematic personal and commercial situations. 1.18 DR expertise is therefore central to the broad and diverse nature of the contemporary real world of lawyering, and effective practice in both the DR and transactional lawyering roles requires the deployment of DR knowledge, skills and attitudes. Few would disagree, for example, that in both transactional and DR legal practice it is important for lawyers to work with their clients’ needs and interests, as well as their legal rights and positions. Further, communication skills are critical to all the work that lawyers do and negotiation skills, for both transactions and disputes, are required and used on a daily basis. 1.19 Although we are referring to the expansive range of DR skills here, it is important to note that DR expertise to date has been considered through the relatively narrow lens of litigation, and the DR work of lawyers has generally been categorised Copyright © 2016. LexisNexis Butterworths. All rights reserved. as predominantly focused on supporting clients to manage disputes through the courts — even though matters have often been settled through negotiations or other DR processes before reaching trial. However, DR expertise should be more overtly acknowledged as core to contemporary lawyering more broadly. The importance of 38. William D Henderson, ‘Letting Go of Old Ideas’ (2013) 112 Michigan Law Review 1111. 39. Kenneth N Klee, ‘Teaching Transactional Law’ (2004) 27 California Bankruptcy Journal 295. See also, Karl S Okamoto, ‘Teaching Transactional Lawyering’ (2009) 1 Drexel Law Review 69 and Andrew Godwin, ‘Teaching Transactional Law — A Case Study from Australia with Reference to the US Experience’ (2015) 16 Tennessee Journal of Business Law 343. 40. Okamoto, above n 39, 122. 9 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 9 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  1.19 Australian Dispute Resolution: Law and Practice DR skills to transactional and preventative lawyering needs to be better recognised, and DR expertise should be accepted as doing more than simply augmenting an adversarial system focused on litigation. The legal profession is certainly on track to achieving this, but has some way to go. For this reason this book explores how DR expertise could be more fully integrated into legal practice, and as a consequence more fully into legal education as well. 1.20 In terms of transactional lawyering, it is increasingly acknowledged that ‘transactional competency is necessary for new lawyers’,41 because transactional practice is at least equal to, and perhaps even dominates, DR practice.42 What do transactional lawyers do? Transactional legal practice occurs in diverse legal settings, from large law firms and in-house situations to small general practices.43 Transactional lawyers perform due diligence and ‘evaluate business and legal risk in connection with transactions, draft contracts, negotiate terms in complex agreements and understand the greater commercial context in which transactions take place’.44 1.21 It follows that transactional work is varied and often complex. Transactional lawyering most commonly traverses legal transactions concerning real estate, corporate, commercial and business interests, banking and finance, bankruptcy and insolvency, taxation matters and international business.45 Indeed, transactional lawyers play a critical role in virtually all business transactions. However, transactional work is also relevant to many other areas of law as diverse as intellectual property, estate and probate, and family law. 1.22 Transactional lawyers must be able to provide advice and advocacy and draft legal documentation. Penland argues that to practice transactional work well in business contexts, lawyers need the following competencies:46 first, ‘the ability to understand business associations, advise about business structures, and draft documents related to business associations’; second, ‘the ability to investigate facts and research the law (with emphasis on due diligence)’; third, ‘the ability to draft and negotiate contracts’; and fourth, ‘the ability to identify and address the ethical implications of transactional practice’.47 Relevant to these competencies, and a capacity to execute them well, are DR knowledge, skills and attitudes — for example, ‘client-facing skills’,48 communication skills such as effective interviewing, questioning, summarising and reframing, the Copyright © 2016. LexisNexis Butterworths. All rights reserved. 41. Lisa Penland, ‘What a Transactional Lawyer Needs to Know: Identifying and Implementing Competencies for Transactional Lawyers’ (2008) 5 Journal of the Association of Legal Writing Directors 118, 118. 42. Ibid 120. 43. Ibid 122. 44. David Zarfes, Sean Z Kramer and David Birnbaum, ‘Teaching Transactional Law to New Lawyers’ (2014) Corporate Counsel 1, 1. 45. Bagust, above n 29. 46. Penland, above n 41, 124–7. 47. Ibid 124. 48. Zarfes, Kramer and Birnbaum, above n 44, 3. 10 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 10 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  Lawyers, Lawyering and Dispute Resolution 1.25 ability to identify hidden problems and agendas, problem-solving skills, option generation skills, and the ability to identify interests as well as positions. 1.23 Transactional lawyering therefore not only requires DR expertise, but it can also be seen as a part of the DR process matrix (discussed in Chapter 2) 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.49 1.24 With regard to the DR side of legal practice, for reasons explored throughout this book, and particularly in Chapter 2 which follows, contemporary lawyering now involves a more expansive matrix of DR options than ever before. In Western legal systems there will always be a place for litigation as an important process on the DR matrix. However contemporary legal practice, both in Australia and internationally, increasingly involves a wide range of processes conducted away from the courts. Indeed, many legal disputes are now resolved by lawyers without the commencement, or even threat of commencement, of any court proceedings. There is no way of knowing how many disputes are dealt with in this way, but it is certainly a significant number.50 Of civil law matters in which court proceedings are commenced it is estimated that only 5 per cent proceed all the way to trial — with 95 per cent dealt with through other DR processes before the trial date arrives.51 1.25 This entails that modern DR lawyers must have the knowledge and understanding to diagnose what process or processes would best suit the particular issues their client needs addressed or resolved. In other words, legal practitioners now more than ever need to be able to ‘fit the forum to the fuss’.52 Sometimes the appropriate DR approach will require the adoption of adversarial strategies and the pursuit of litigation, for example, because rights and entitlements are at stake and a determination by an impartial decision-maker, based on normative rules and values, is required.53 In other instances processes that are less adversarial and involve facilitated negotiations or the exploration and consideration of parties’ interests, as well as their positions and rights, will be required.54 This may be because future relationships are at stake, or because the dispute involves matters that are difficult to evaluate quantitatively. Copyright © 2016. LexisNexis Butterworths. All rights reserved. 49. Louis M Brown, Preventive Law (Prentice Hall, 1950); Louis M Brown, Lawyering Through Life: The Origin of Preventive Law (Fred B Rothman and Co, 1986); Louis M Brown, ‘The Law Office: A Preventive Laboratory’ (1956) 140 University of Pennsylvania Law Review 940. 50. Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008). 51. Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014) 7–8. 52. Frank EA Sander and Stephen B Goldberg, ‘Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure’ (1994) 10(1) Negotiation Journal 49. See also John Wade, ‘In Search of New Conflict Management Processes — the Lawyer as Macro and Micro Diagnostic Problem Solver’ (1995) 10 Australian Family Lawyer 23. 53. Owen M Fiss, ‘Against Settlement’ (1984) 93 Yale Law Journal 1073. See also Owen M Fiss, The Law as it Could be (New York University Press, 2003). 54. King et al, above n 51. 11 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 11 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  1.26 Australian Dispute Resolution: Law and Practice 1.26 As only a small percentage of legal disputes are now finalised through litigation systems, and a vast majority are resolved outside the courts, it is worth asking the question: What has changed in the legal system to make this the case? In recent decades, as we explain further in Chapters 2 and 3 when discussing the DR matrix and the history of Australian DR, appreciation of the value and efficacy of ‘alternative’ modes of DR to litigation has developed. As long ago as 1990 Justice Paul de Jersey (as he then was) said: Lawyers who plough on in the traditional way do so at their peril. The peril is that they will lose their clients. They will end up with dissatisfied clients. Word will get around. They will be perceived to be interested principally in large fees. I think that a clear- sighted recognition of the ADR trend is important to the future of the Bar.55 Lawyers are now more aware of the benefits of new DR approaches. Perhaps more importantly clients are also demanding more seriously that their legal advisors help them find ways to resolve legal disputes without the cost, delay and disruption of court proceedings.56 1.27 While the profession is increasingly recognising the efficacy of new DR processes in legal practice, a more pragmatic reason for lawyers to adopt these approaches is that they have effectively been required to do so. This is because processes such as negotiation, mediation and conciliation have increasingly been institutionalised through recognition in government policy and inclusion in the statute book at both state and federal levels (we trace the history of DR’s institutionalisation in Chapter 3).57 More and more, civil procedure legislation expects or mandates parties to engage in an NLDR process before they are able to file proceedings in a court. For example, legislation such as the Civil Dispute Resolution Act 2011 (Cth) and the Uniform Civil Procedure Rules 1999 (Qld) require parties who want to commence court proceedings to first take genuine steps to resolve their dispute, using negotiation or an assisted DR process.58 The requirement for pre-filing DR efforts is also now present in specific areas of legal practice, such as family law,59 discrimination, personal injuries law,60 and small claims and administrative law.61 1.28 Further, once a matter does reach court, judges at all levels of the Australian court hierarchy have wide-ranging powers to refer matters to a court-connected Copyright © 2016. LexisNexis Butterworths. All rights reserved. 55. Paul de Jersey, ‘Address to the Australian Bar Association Conference’ (1990), cited in David Spencer, ‘Liability of Lawyers to Advise on Alternative Dispute Resolution Options’ (1998) 9 Australian Dispute Resolution Journal 292. 56. Katie Walsh, ‘Demand Slump for Law Firms in Shaky Market’, Financial Review, 28 August 2015. 57. Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011) 395, 560; Tania Sourdin, Alternative Dispute Resolution (Thomson Reuters, 4th ed, 2012). 58. Civil Dispute Resolution Act 2011 (Cth) ss 3–4. 59. Family Law Act 1975 (Cth) s 60I. 60. Anti-Discrimination Act 1991 (Qld); Personal Injuries Proceedings Act 2002 (Qld). 61. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 75. 12 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 12 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  Lawyers, Lawyering and Dispute Resolution 1.30 DR process.62 Some referrals can be made even where the parties themselves do not consent.63 The result is that non-adversarial DR processes and approaches have become embedded in legal practice and are an inherent part of the day to day work of lawyering, even in matters where litigation is also being considered. A practical indication of this is found in the trend in law firms to rename their litigation sections with reference to DR, and more barristers include among the legal services they offer assistance with mediation and conciliation processes. 1.29 In addition, legal ethics and professional responsibilities also now recognise the centrality of DR practice to the work of the legal profession. Conduct rules in place across Australia for both barristers and solicitors impose duties to advise clients on alternatives to litigation.64 For example, r 7.2 of the Australian Solicitors Conduct Rules (ASCR) states: A solicitor must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation.65 The wording of a barrister’s duty to advise a client on alternatives to litigation, found in the Barristers’ Rules of the Bar Associations in each state and territory, is virtually the same as the ASCR. The duty to advise about alternatives to litigation can be considered as a duty both to act in the best interests of the client as well as a duty to the court and to the administration of justice.66 1.30 Therefore, unless a legal practitioner has reasonable grounds to believe that their client already has an understanding of the alternatives to litigation, they are required to advise about the available process options. In order to be able to discharge this duty, legal practitioners must know and understand what appropriate alternative approaches to litigation exist for their client. This requires an understanding of the 62. For example, Federal Court of Australia Act 1976 (Cth) s 53A allows a court to refer a matter to mediation or arbitration. See Judy Gutman, Tom Fisher and Erika Martens, ‘Why Teach Alternative Dispute Resolution Copyright © 2016. LexisNexis Butterworths. All rights reserved. to Law Students? Part One: Past and Current Practices and Some Unanswered Questions’ (2006) 16 Legal Education Review 125, 128. 63. Federal Court of Australia Act 1976 (Cth) s 53A(1A). See also Boulle, above n 57, ss 563–70, Supreme Court of Queensland Act 1991 (Qld) ss 102–3, District Court of Queensland Act 1967 (Qld), ss 97–8, and the Magistrates Court Act 1921 (Qld), ss 29–30. 64. See generally, Judy Gutman, ‘The Reality of Non-Adversarial Justice: Principles and Practice’ (2009) 14(1) Deakin Law Review 29; Jacqueline M Nolan-Haley et al, ‘ADR and the Professional Responsibility of Lawyers’ (2000) 28(4) Fordham Urban Law Journal 887 and David Spencer, ‘Liability of Lawyers to Advise on Alternative Dispute Resolution Options’ (1998) Australian Dispute Resolution Journal 292. 65. Australian Solicitors Conduct Rules 2012 r 7.2. 66. This classification of the duty has been suggested in Gino Dal Pont, ‘Ethics: A Duty to Encourage Settlement’ (2005) 79(1–2) Law Institute Journal 80. See also Judy Gutman, Tom Fisher and Erica Martens, ‘Why Teach Alternative Dispute Resolution to Law Students? Part One: Past and Current Practices and Some Unanswered Questions’ (2006) 16 Legal Education Review 125, 127. 13 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 13 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  1.30 Australian Dispute Resolution: Law and Practice nature of the processes included in the matrix of DR options (discussed in Chapter 2) and their key characteristics. It also requires lawyers to have the necessary knowledge and understanding to diagnose what process or processes would best suit their client’s particular dispute and issues — as we said above, lawyers need to be able to ‘fit the forum to the fuss’.67 Duties also exist for legal practitioners engaging in a DR process and the nature of the duty will be impacted by whether they are acting as a representative for a client or facilitating a DR process as an impartial intervener, for example mediating or arbitrating. 1.31 The paragraphs above establish that DR expertise has a significant place in contemporary lawyering — in both DR and transactional aspects of legal practice. The broad relevance of DR practice to modern legal work is further emphasised by considering how such work contributes to lawyers’ roles in upholding the rule of law. The rule of law provides the foundational philosophical and doctrinal framework for the provision of legal services in Australia and it represents the core values and norms of professional legal practice in our society. For this reason the next section explores ways in which the DR role of lawyers bolsters their capacity to uphold the attributes of the doctrine. Lawyering, DR expertise and upholding the rule of law68 1.32 The rule of law is a central tenet of liberal democracies that contributes to the maintenance of peace, order and freedom in society.69 It denotes a society that is governed by laws that ‘regulate complex relationships — relationships between people and relationships between the people and the State’.70 The rule of law offers a critical explanation for why the work of lawyers is important, why the professional purpose of legal work is meaningful, and why lawyers can claim that their contribution to society is significant and valuable. The rule of law is a cornerstone for legal practice, providing motivation for doing work that is often difficult and challenging by emphasising the ways in which it is also fulfilling and rewarding. 1.33 As agents of the rule of law, lawyers contribute to a just and orderly society in which human rights and freedoms are maintained, democracy is upheld and the principles of a market economy are supported.71 Lord Bingham of Cornhill, a British Copyright © 2016. LexisNexis Butterworths. All rights reserved. judge and jurist acclaimed as ‘fair, robust and principled, and the embodiment of what we imagine the rule of law to be about’,72 defined the rule of law as including 67. Sander and Goldberg, above n 52; Wade, above n 52. 68. See Field, Duffy and Huggins, above n 7, chs 1, 6, 10, 11–12 and 14. 69. Brennan, above n 26, 3. 70. Ibid 4. 71. Jeremy Waldron, ‘The Concept and the Rule of Law’ New York University School of Law Public Law and Legal Theory Research Paper Series (Working Paper No 08-50, 2008) 1. 72. Maev Kennedy, ‘Tributes to Lord Bingham, “The Greatest Judge of our Time”: Human Rights Campaigners and Lawyers Hail “Towering Figure” and “Rock of Principle”’, The Guardian (online), 13 September 2010. 14 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 14 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  Lawyers, Lawyering and Dispute Resolution 1.36 factors such as: accessibility, intelligibility and clarity of laws; the resolution of legal rights and liabilities through application of the law; the equal application of the law to all; the protection of human rights; the resolution of civil disputes; proper and reasonable exercise of powers by government; fairness; and compliance by the state with international law.73 1.34 Former Chief Justice of Australia, Gerard Brennan, summarised the indicia of the rule of law into three points: service to the people of a society, the provision of stable order, and freedom from the vagaries of personal whim or influence.74 Lawyers ensure that the law treats the citizenry equally and they hold political and legal systems to account in order to prevent arbitrary uses and abuses of power,75 so lawyers are ‘essential to the rule of law’.76 1.35 When practitioners engage in daily lawyering work they do more than simply use their expertise to apply the law to their clients’ situations. As lawyers, ‘every day of our professional working lives has some connection to ensuring our society is just and fair, that we are governed responsibly, and there is a societal framework in place to support economic security’.77 Both transactional and DR legal work play a part in maintaining a society that, in the words of the International Commission of Jurists in 1959, ‘creates and maintains the conditions which will uphold the dignity’ of humans as individuals by establishing essential ‘social, economic, educational and cultural conditions’.78 1.36 In terms of the relationship between DR practice and the rule of law, Justice Hayne said in 2002: it is relevant to speak of the rule of law in connection with dispute resolution only if the dispute concerns legally enforceable rights and duties and only if the parties to the dispute wish or are required to have their dispute determined in accordance with those rights and duties.79 73. Lord Bingham, ‘The Rule of Law’ (2007) 66 Cambridge Law Journal 67. See also Lord Bingham, ‘Personal Freedom and the Dilemma of Democracies’ (2003) 52 International and Comparative Law Quarterly 841. Copyright © 2016. LexisNexis Butterworths. All rights reserved. For other seminal definitions see, eg, AV Dicey, An Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959); John Rawls, A Theory of Justice (Harvard University Press, 1971); Ninian Stephen, ‘The Rule of Law’ (2003) 22(2) Dialogue (Academy of the Social Sciences in Australia) 8. 74. Brennan, above n 26. 75. Stephen Bottomley and Simon Bronitt, Law in Context (Federation Press, 4th ed, 2012) ch 2. 76. Brennan, above n 26, 5. 77. Field, Duffy and Huggins, above n 7. See also Rule of Law Institute of Australia (2015). 78. International Commission of Jurists, The Rule of Law in a Free Society — Report of the International Congress of Jurists (Geneva, 1959) cl 1 of the Report of Committee 1, 4. Also quoted in Joseph Raz, ‘The Rule of Law and Its Virtue’ (1977) 93 Law Quarterly Review 195, 195. 79. Justice Hayne, ‘Dispute Resolution and the Rule of Law’ (Speech delivered at the Sino-Australian Seminar, Beijing, 20–22 November 2002). See High Court of Australia. 15 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd LexisNexis Butterworths. 15 9/29/2016 1:30:07 PM Created from uql on 2024-11-18 23:23:30.  1.36 Australian Dispute Resolution: Law and Practice This quotation reflects what is still perhaps a widely held view: that the role of lawyers as custodians of the rule of law involves an adversarial approach to the rigorous protection and pursuit of rights in DR contexts. While there is a time and place for zealous advocacy in DR lawyering, as this book acknowledges, lawyers are not only advocates who pursue the legal rights and entitlements of their clients — they are also representatives who creatively problem solve for their clients and assist them with managing complex legal matters in their best commercial and personal interests. 1.37 There is no doubt that the DR function of lawyers is central to their contribution to upholding the rule of law. Whether disputes are adjudicated in courts of law, or negotiated outside of the courts, the invocation of legal norms and procedural fairness to assist with the management and resolution of disputes supports conceptions of a society in which the law can be used to help people, and promote equality and justice. As Brennan has said, ‘the law which rules is the law according to the rulings of the courts, but it is applied in the offices and chambers of the legal profession. It is applied in drafting and advising; in consultations more than in litigation’.80 This encapsulates our theory of the rule of law in relation to DR. 1.38 The rule of law does not, therefore, 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 rule of law seeks to have DR (and transactional) advice and processes informed by constitutional, formal, and procedural efficacy.81 It is indeed the less adversarial legal methods which could more accurately be said to support a view of ‘the legal profession as a profession of service’ to the community under the rule of law.82 Lawyers’ contributions to maintaining the rule of law as resolvers and managers of disputes can therefore be said to ‘give vitality to the peace and order, the freedom and the decency, of the society in which we live’.83 1.39 Thus, the connections between the rule of law and DR practice provide an informing framework for a sense of purpose and meaning in professional legal endeavours. Both formal and informal, and adversarial and non-adversarial, approaches in DR lawyering are required to address the increasingly complex needs and interests of clients. Reflection on the rule of law as a guiding principle of DR practice can encourage lawyers to remember that legal work ensures access to justice for the citizenry and the Copyright © 2016. LexisNexis Butterworths. All rights reserved. DR work of lawyers provides a basis for the claim that the legal profession is worthy and noble. Nevertheless the profession has faced significant criticism for at least the past two decades, and calls for change are challenging the status quo. The next section considers these challenges which highlight the need for increased attention and focus in the profession on DR practice. 80. Brennan, above n 26, 14. 81. Bottomley and Bronitt, above n 75. 82. Brennan, above n 26, 16–17. 83. Ibid. 16 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch01.indd