The Australian Experience of Legislated Pre-Action ADR Requirements: Specificities, Acceptation, and Keys to Success

Abstract

Mediation is now well-established in Australia particularly in the commercial jurisdictions of the states and territories. However it is still viewed as an unwelcome visitor by many in the legal profession and the judiciary. This is reflected in the fact that commercial mediations generally take place at the later stages of the dispute. This translates into a process that is directive, evaluative and solution focused. The legal profession is comfortable with this approach because it has a marked similarity to the adversarial litigation process. The legislated pre-litigation ADR initiatives are designed to pressure lawyers into mediating much earlier in the litigation cycle. This requires a different mediation style, one that is relationship based and facilitative with more of a focus on the soft skills of the mediator.Part of the motivation for earlier mediation is cost efficiency, but at a more fundamental level, it is a reflection of the fact that we are living in changing times especially in the commercial world. There has been a fundamental shift towards a more collaborative management style within corporations and the rise, especially recently, of the “collaborative economy” as evidenced by the Uber ride-sharing and Airbnb accommodation platforms. It is the speed of change together with the relationship complexity of modern commercial activity that will have the most impact on the slow, adversarial and expensive traditional judicial approach to resolving conflict. Early relationship-based mediation can be the pathway for commercial lawyers and the 19th century judicial processes to move into and play a respected part in the new 21st century collaborative commercial economy.The legislative directive to engage in early mediation challenges the traditional adversarial style of negotiating. The main challenges are: a. Expanding the definition of mediation to include an early pre-mediation conference with each party and their lawyer; b. The value to the process and outcome of the mediator assisting in the facilitation of discovery. This is one of the greatest challenges for mediators as lawyers are often unwilling to bring in a mediator until after discovery has been completed; c. Recognising and valuing the soft skills of the mediator. The art of influencing the parties in the early stages of the negotiation is achieved by avoiding any talk about the parties’ hard positions, possible outcomes and the law. It is at the level of non-contentious pre-mediation administrative functions that mediators see parties with their guards down, often revealing their true underlying needs and desires. While legal advice is vital the decision to compromise and to say “yes” and settle is taken by the parties at the personal level, on the emotional relationship plane. Working with parties at the very beginning of their conflict will require a far more nuanced approach and style from mediators particularly the ability to work with parties in the here and now of a joint session.It will also require the ability, especially for lawyer mediators, to become comfortable with the parties emotional state and their interpersonal relationship issues. It is therefore important that mediators connect with the parties at this level very early in the litigation cycle particularly through engaging with them and their attorneys in early pre-mediation meetings. This will require mediators to move beyond hard negotiating techniques to access soft skills. Soft skills include the ability to remain present in the moment, intuition, empathy, rapport, managing the challenge of being an irritant and the use of time and space (Temporality, ‘The Third’, ‘The Field’) and Meditation/Mindfulness (Rooney and Ross).