I’ve just spent the past 4 days in a whirlwind of ideas and conversations at the American Law and Society Association annual meeting in New Orleans. (You can follow the fascinating Twitter feed for the conference Here.) Three ADR Research Network members presented papers at the conference: Professor Rachael Field from Bond University, Professor Tania Sourdin, Dean of Newcastle Law School and me. Both Tania and I tweeted prolifically at the conference.
There were lots of wonderful papers about dispute resolution, judging, case management and therapeutic and procedural justice. The conference often had 12 parallel sessions running, with papers each plus discussants, from 8.15am-5pm for 4 days straight. I have a strong case of ideas-overload right now.
I think what I love the most about huge conferences like this one are the conversations that take place outside and around the formal paper sessions. It is there we are able to make real connections with researchers in other jurisdictions and think about how developments in other legal systems might reveal truths about our own legal system.
Over a very nice glass of vinho verde, I was having such a conversation with Dr Bridgette Toy-Cronin, Director of the Legal Issues Centre at the University of Otago in New Zealand and Dr Karni Perlman of Bar Ilan University on Israel. We were comparing civil justice reforms in our countries and methods used by governments to streamline litigation and increase settlements before trial. Sometimes parliaments and courts attempt to de-legalise disputes by banning lawyers or forcing parties to appear unrepresented in litigation or other dispute resolution procedures. In Israel, and New Zealand recent legislation has required family law disputants to attend informal dispute resolution processes or litigation without their lawyers.
Both of these developments remind me of how, in Australia between 2006 and 2009, just after implementation of the major family law reforms making family dispute resolution (FDR) compulsory in many family law childrens’ disputes, guidelines banned lawyers from attending FDR seasons at Family Relationship Centres. Those guidelines very revised in 2009 and lawyers are now involved productively and cooperatively in FDR in a number of cases, including in special FDR process set up to support victims of family violence.
To my way of thinking, ousting lawyers from legal processes and discouraging legal representation is a very crude way of attempting to streamline dispute resolution procedures. Such measures are based upon the false assumption that the source of adversarialism is lawyers. Therefore, it is reasoned, having clients go ‘naked’ without their legal counsel, will facilitate a collaborative settlement.
This assumption ignores several truths that are well-established by research. One ignored truth is that a key role that lawyers play in civil disputes is to manage the expectations of their clients. Lawyers often assist with reaching a settlement by encouraging their clients to accept an outcome that is closer to what the other side may see as reasonable, thus bringing the parties closer together. A second ignored truth is that legal advice plays an important protective role in ensuring that clients, in the absence of their lawyers, don’t bargain away rights that they will need. Legal advice helps prevent unjust settlements, especially where there is an imbalance of negotiating power. Forcing clients to negotiate or litigate without their lawyers may unreasonably disadvantage vulnerable parties.Edit
We’ll continue our conversation about the implications of cross-national civil justice reform that ejects lawyers from dispute resolution processes.
We hope to use the experiences of other jurisdictions to inform development of civil justice policy. Without the chance to meet and chat about our own work at the conference, we would never have made the connection between justice reforms in these three diverse jurisdictions.
Can you help? Are there any examples of similar reforms in your jurisdiction or area of practice that reject the involvement of lawyers? Please post a comment here or email me.