Up close and (far too) personal – when ADR fails…. Or does it?

Many of us in the ADR community have been disappointed and horrified observers of the long-running family feud between a matriarch and her children.

There have been a number of attempts at mediation that we know of and, undoubtedly, many other confidential efforts to resolve this privately.

It has been very tantalising to watch. Talking with my ADR colleagues, it is clear that we have chosen to join this community because of our commitment to ADR principles and the opportunity they provide for durable resolution of disputes and the relationships they threaten.

It is tempting, in the face of very long drawn out and vitriolic proceedings, to see this case as a failure of ADR. However I have now worked my way through the elegant, carefully constructed and exceedingly thorough judgement of Brereton J[1] delivered last week and it has prompted me to revisit my thinking.

Those of us who teach ADR are careful to talk about repertoire rather than revolution. We explain carefully that choosing the most appropriate dispute resolution process will always depend on the interests of the parties. Sometimes uncovering and scrutinising the interests of the parties reveals that a private, consensual process does not satisfy the interests of at least one of the players. It seems a logical pursuit of its interests for a pharmaceutical company which owns the patent for the most profitable drug in the world to punish, aggressively, expensively and publicly, the generic brand threatening its patent. It has an interest, regardless of the expense, of giving a powerful signal to other would-be infringers to stay away. This could not be described as a failure of ADR. Rather it is an example of a party choosing, from the entire dispute resolution repertoire, the course of action which best meets its interests.

We are accustomed to families preferring harmony over disputes. Unless we are in the business of selling gossipy magazines, it is painful and unwelcome to watch the public disintegration of family life. Most of us would prefer to believe that familial love is so strong that it can find a way to resolve conflict with a generosity of spirit and a willingness to respect and honour differences.

This case challenges us to question those assumptions and our preference for peaceful resolution. Brereton J’s unpicking of the long chain of events reveals a conflict of values. In one corner we can identify the values of power and control – in the other corner the values of access to justice – feeling fairly treated within a framework of due process. The interests of each party in family harmony became, as the situation unravelled, subordinate to the values expressed in their very public dispute. Reading the story it is clear why the parties could not abandon the fight.

It is not a failure of ADR. It is the parties pursuing their powerfully held and conflicting interests, with none willing to sacrifice these interests in the pursuit of peace and family harmony.

Unpleasant as it is to be the unwilling observers of such an intimate and expensive spectacle, it is also useful to stand back and reflect. The reflection is useful and encouraging. It provides confirmation for us as ADR proponents that ADR remains alive and well; an important part of the dispute resolution repertoire. It just doesn’t suit all of the parties all of the time. The answer is always in the interests.

[1] See http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2015/646.html?stem=0&synonyms=0&query=rinehart&nocontext=1

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