Australian dispute resolution : law and practice [1 ed.] 9780409341850, 0409341851

Table of contents :
Full Title
Copyright
Preface
Table of Cases
Table of Statutes
Table of Contents
PART I: THE DISPUTE RESOLUTION PANORAMA
Chapter 1: Lawyers, Lawyering and Dispute Resolution
Chapter contents
Introduction
The profession of law
DR and the nature of legal work
Lawyering, DR expertise and upholding the rule of law
The challenges of change for the legal profession
DR as a response to the challenges facing the legal profession
Legal education and DR: preparing lawyers of the future
Legal education, the ‘Priestley 11’ and DR
DR and the threshold learning outcomes
Conclusion
Chapter 2: The Dispute Resolution Matrix
Chapter contents
Introduction
What was alternative dispute resolution (ADR)? What is DR?
Spectrums, pyramids, trees and a matrix
DR typologies
Typology 1: DR process focus
Prevention-focussed DR processes
Interests-focussed DR processes
Rights-focussed DR processes
Power-focussed DR processes
Illustrating typology 1
Typology 2: Independent interveners’ roles and functions
An Australian DR matrix
Self-help approaches
Processes without impartial intervention
Negotiation
Collaborative practice
Conflict coaching
Partnering and alliancing
Facilitated DR processes
Mediation
Facilitation
Conferencing
Family dispute resolution (FDR)
Counselling
Good offices and brokering
Advisory DR processes
Conciliation
Expert appraisal, case appraisal and neutral evaluation
Fact-finding
Determinative DR processes
Arbitration
Expert determination
Adjudication
Refereeing
Dispute review boards
Litigation
Transformative DR processes
Therapy
Conflict coaching
Transformative mediation
Blended DR processes
Med-arb
Arb-med
Arb-med-arb
Other blended processes
Conclusion
Chapter 3: Shaping Australian Dispute Resolution
Chapter contents
Introduction
Indigenous DR in Australia
Influences on the shaping of DR in Australia
The shaping of community-based DR
Australian developments in community-based DR
The shaping of DR through civil justice reform
Australian developments in civil justice system reform
Institutionalisation of DR through the courts
Institutionalisation of DR through tribunals and ombuds
Tribunals
Ombuds
The people and organisations of DR in Australia
NADRAC and the Australian Dispute Resolution Advisory Council
The Resolution Institute
The Bond Dispute Resolution Centre
Australian Disputes Centre (ADC)
Shaping the future of DR in Australia
Conclusion
Chapter 4: Values and Goals in Dispute Resolution
Chapter contents
Introduction
Understanding values and goals
A philosophical framework for DR values and goals: Democracy and the rule of law
The values of contemporary Australian DR: Justice, party autonomy and community
Justice as a DR value
Justice as fairness
Fairness in DR – the goal of procedural justice
Fairness in DR – the goal of substantive justice
Procedural and substantive justice and informed consent
Fairness in DR – the goal of impartiality
The DR value of party autonomy
The DR value of community
Access to justice in a civil society
Access to justice through DR
The important role of lawyers
Conclusion
Chapter 5: Conflict and Disputes as Lawyers’ Business
Chapter contents
Introduction
Elements in the conflict crucible
Conflict and disputes
The participants in conflicts and disputes
The interveners
DR process outcomes
Other conceptual elements
Nature, causes and diagnosis of conflict and disputes
Categories of conflicts and disputes
The nature and dimensions of conflicts and disputes
Cognitive and social biases in conflict
Positions and interests in conflict situations
Dispute diagnosis and interventions
Escalation and de-escalation of conflicts and disputes
Appropriate defining of disputes
Adversarial and non-adversarial approaches to managing conflict
Managing conflicts constructively
Effectiveness in conflict management and dispute resolution
Practitioner functions in conflict management
Power in dispute resolution
Law and lawyers in the business of conflict and disputes
Transactional lawyering
Dispute resolution lawyering
Conflict escalation and the law
Lawyers and dispute resolution processes
Lawyers and regulation in dispute resolution
Conclusion
PART II: DISPUTE RESOLUTION SYSTEMS
Chapter 6: Processes Without Independent Interveners
Chapter contents
Introduction
Party self-help
Assisting self-help parties
Institutional assistance
Lawyer assistance
Conflict coaching
Counselling and related assistance
Negotiation
Definition and purposes
Normative dimensions of negotiation
Models and styles of negotiation
Transactional negotiation
DR negotiation
Nature and motivation
Participants
Negotiation procedure
Negotiation scope and content
Negotiation outcomes and effectiveness
Negotiation impacts
Negotiation preparation
Synthesis
Regulating negotiation conduct and ethics
Collaborative practice
Alliancing and partnering
Lawyers and DR without independent interveners
Conclusion
Chapter 7: Facilitated Dispute Resolution Processes
Chapter contents
Introduction
Facilitation
Mediation
Definition and description
Mediation values
Mediation models
Settlement mediation
Facilitative mediation
Transformative or therapeutic mediation
Evaluative or advisory mediation
Synthesis
Mediation structure and procedure
Mediator’s opening
Party initial statements
Problem definition and agenda
Discussion and exploration
Generating options, bargaining and problem-solving
Final decision-making, recording and closure
Preliminary mediation activities
Mediator selection and appointment
Organisational preparation
The role of lawyers
Agreement to Mediate
Post-mediation activities
Variations in structure and procedure
Joint sessions
Separate sessions
Shuttle mediation
Electronic, online and telephonic communication
Adjournments, suspension and termination
Mediator functions and capabilities
Applications of mediation
Commercial disputes
Building and construction disputes
Community disputes
Family disputes
Industrial, employment and workplace matters
Native title claims
Farm debt disputes
International commercial disputes
Critical issues in mediation
Conciliation
Other facilitative-advisory processes
Lawyers in facilitated processes
Conclusion
Chapter 8: Advisory and Evaluative Dispute Resolution Processes
Chapter contents
Introduction
Conciliation
Definitional distinctions between conciliation and mediation
The values and goals of conciliation
Conciliation procedures
Applications of conciliation
Industrial and workplace applications
Conciliation in family law
Anti-discrimination conciliation
Blended conciliation processes
Issues in conciliation practice
Expert appraisal, neutral evaluation, case appraisal
Evaluation and appraisal procedures
Issues in evaluation and appraisal
Ombud institutions
Lawyers and the advisory processes
Conclusion
Chapter 9: Determinative Dispute Resolution Processes
Chapter contents
Introduction
Underlying values and attributes
Adjudication
Expert determination
Features and procedures
Distinguishing expert determination from arbitration
Procedural fairness
Courts and compliance
Enforceability
Applications of expert determination
Arbitration
Definition and attributes
Procedure
Enforceability and the courts
Applications
International determination systems
International commercial arbitration
Arbitration in investment and trade disputes
Arbitration in international consumer disputes
Quasi-determinative processes
Referees
Assessors
Med-arb
Arb-med-arb
Other quasi-determinative processes
Lawyer involvement in determinative processes
Conclusion
Chapter 10: Litigation
Chapter contents
Introduction
Values and goals of litigation
Litigation in Australian domestic law
Traditional common law litigation
Critiques of common law litigation
Alternative litigation systems
Case managing litigation
Pre-litigation requirements
‘ADR’ in court-based litigation
Organisational factors
Pre-appeal dispute resolution
The multi-door courthouse
Court-aligned DR in perspective
Judicial dispute resolution
Constitutional considerations
Compatibility arguments
Performance-based questions
Accountability considerations
Non-adversarial justice in the courts
Evaluation
International litigation systems
International court of justice
Other international adjudication
The future of litigation – online courts
Lawyers, courts and litigation
Conclusion
PART III: DISPUTE RESOLUTION PRAXIS AND POTENTIAL
Chapter 11: Practice and Theory: The Interface
Chapter contents
Introduction
DR Praxis
The importance of an evaluative approach to DR
Putting theory into practice
Praxis and DR advocacy
The adversarial advocacy hat
The non-adversarial advocacy hat
A new legal culture of advocacy
Summary
Praxis and informed consent in NLDR
The meaning of informed consent in NLDR systems
A framework for achieving informed consent in NLDR
Summary
Praxis and the shadow of the law
Overstating the role of the law
Uncertainty of the law
Summary
Praxis and reflective DR practice
Reflective practice supports emotional intelligence in DR
Reflective practice supports the development of a professional identity
Conclusion
Chapter 12: Competence and Ethics in Dispute Resolution
Chapter contents
Introduction
Competence in DR
Substantive knowledge
Determinative processes
Advisory processes
Facilitative processes
Blended processes
Procedural knowledge and skills
Determinative processes
Advisory processes
Facilitative processes
Recognition, training and accreditation
The National Mediator Accreditation System (NMAS)
The Family Dispute Resolution (FDR) system
Conciliation processes
The new DR competencies
Emotion and dispute resolution
Psychology, neuro-biology and DR
Competencies for ‘new lawyers’
Extending the traditional legal competencies
Adding to the lawyer’s toolbox
Summary
Ethics and DR
Ethical rules for lawyers representing clients in DR
Rules of ethical conduct for Australian solicitors
Rules of ethical conduct for Australian barristers
A case on point: Legal Services Commissioner v Mullins
Summary
Ethical rules for lawyers as interveners in DR processes
Ethics for judges
Ethics for lawyer arbitrators
Ethics for lawyers as conciliators
Ethics for lawyer mediators
Consequences of breaching ethical rules in DR contexts
A moral compass for lawyers in DR processes
Using a moral compass for ethical DR lawyering
Future ethical NLDR paradigm
Teaching ethics for DR contexts at law school
Conclusion
Chapter 13: Dispute Resolution, Law and a Positive Professional Identity
Chapter contents
Introduction
Understanding a positive professional identity
Conceptualising a positive professional identity for lawyers based on DR
A professional ideology for DR practice in law
Fidelity to the ‘good’ of dispute resolution
A public DR ‘office’
Fitness for practice
Summary
The comprehensive law movement: putting the ideology for a positive professional identity for lawyers through DR into practice
Collaborative law
Creative problem-solving
Holistic justice
Preventative law
Problem-solving courts
Procedural justice
Restorative justice
Therapeutic jurisprudence
Transformative mediation
Summary
Why a positive professional identity is important
Professional identity and Self-Determination Theory (SDT)
PERMA, DR practice and professional identity
Positive emotion (P)
Engagement (E)
Positive Relationships (R)
Meaning (M)
Accomplishment (A)
Summary
The development of a positive professional identity at law school
Conclusion
Index

Citation preview

Australian Dispute Resolution Law and Practice Laurence Boulle BA (Natal), LLB (Stellenbosch), LLM (London), PhD (Natal), Accredited Mediator (NMAS) Professor of Law, Australian Catholic University, Sydney

Rachael Field BA/LLB (Hons)(ANU), LLM (By Research)(Hons)(QUT), Grad Cert in Higher Ed (QUT), PhD (USyd) Professor of Law, Bond University, Gold Coast

LexisNexis Butterworths

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USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO National Library of Australia Cataloguing-in-Publication entry Authors: Title: Edition: ISBN: Notes: Subjects: Dewey Number:

Boulle, Laurence. Australian dispute resolution: law and practice. 1st edition. 9780409341850 (pbk). 9780409341867 (ebk). Includes index. Dispute resolution (Law) — Australia. Mediation — Australia. 347.9409

© 2017 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Inquiries should be addressed to the publishers. Typeset in Myriad Pro and Minion Pro. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface This book builds on the foundations of Hilary Astor and Christine Chinkin, Australian pioneers in scholarly writing about dispute resolution. They led Australian research, reflection and critique in the field in their two editions of Dispute Resolution in Australia published in 1992 and 2002. Since those works dispute resolution in Australia has progressed well beyond the canvas which Hilary and Christine painted. From a two-dimensional realist and impressionist landscape the subject has today become a three-dimensional sculpture with expressionist, abstract and post-modernist features. This book has three dominant themes. The first is that the concept of ADR is now outdated and DR is used as the preferred term to refer to the full matrix of dispute resolution processes, including litigation; where it is necessary to exclude litigation from general discussion the term non-litigation dispute resolution (NLDR) is used. The second is that the dispute resolution roles of lawyers should become, now and in the future, part of the professional identity of legal practitioners. The third is that dispute resolution knowledge, skills and attitudes have become critical to the viability of the legal profession and every lawyer of the future requires commensurate attributes to meet the exigencies of changing practice and the demands of clients. The authors are grateful to Jocelyn Holmes from the publisher for her commitment to this work and her enduring patience and to Felicia Gardner for her excellence in the fine art of editing. Rachael acknowledges the support of QUT Law School, Brisbane, during the formative part of this work, Laurence acknowledges his supportive colleagues at the Thomas More Law School at ACU, Sydney, and each, in different ways, acknowledges the support of Bond University Law School and its Dispute Resolution Centre. The ADR Research Network has become one of the fresh and vital forces in Australian DR and their activities and support are collegially recognised.

Laurence Boulle Sydney Rachael Field Gold Coast September 2016

Table of Cases References are to paragraph numbers 500 Burwood Highway Pty Ltd v Australian Unity Ltd [2012] VSC 596 …. 9.33 789Ten v Westpac Banking Corp [2004] NSWSC 594 …. 12.94 A Abigroup Contractors Pty Ltd v Transfield Pty Ltd and Obayashi Corp [1998] VSC 103 …. 9.23 Abram v Bank of New Zealand (1996) ATPR 41-507 …. 10.15 Age Old Builders Pty Ltd v Swintons Pty Ltd [2003] VSC 307 …. 9.26 AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173 …. 9.38 Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996 …. 6.11 Amcor Packaging (Australia) Pty Ltd v Baulderstone [2013] FCA 253 …. 9.60 Antoun v R (2006) 224 ALR 51 …. 8.87 Arenson v Casson Beckman Rutley [1977] AC 405 …. 9.28 Ashjal Pty Ltd v Alfred Toepfer International (Australia) Pty Ltd [2012] NSWSC 1306 …. 9.48 Australia v France; New Zealand v France [1974] ICJ Reports 253 …. 10.103 Australian Competition and Consumer Commission v Derodi Pty Ltd [2016] FCA 365 …. 10.20 Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) [2014] FCA 1308 …. 5.112 AWA Ltd v Daniels t/a Deloitte Haskins and Sells (1992) 7 ACSR 463 …. 12.95 — v — (unreported, NSWSC, Rolfe J, 18 March 1992) …. 12.95 B Backreef Oil Pty Ltd and Oil Basin Ltd/John Watson on behalf of Nyikina and Mangala/Western Australia, Re [2012] NNTTA 98 …. 6.103 Barescape Pty Limited v Bacchus Holdings Pty Limited (No 9) [2012] NSWSC 984 …. 13.30

Barrett v Queensland Newspapers [1999] QDC 150 …. 10.68 Baulderstone Hornibrook Engineering Pty Ltd v Kayah Holdings Pty Ltd (1997) BCL 277 …. 9.35 Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384 …. 13.30 Boyle v Ozden (1986) EOC 92-165 …. 7.137, 8.43 Brian Clothier v Ngaanyatjarra Media [2012] FWAFB 6323 …. 8.31 Britax Childcare Pty Ltd v Infa-Secure Pty Ltd (No 2) [2012] FCA 1018 …. 9.99 Browne v Dunn (1893) 6 R 67 …. 10.15 Buttigeig v Melton [2004] VCAT 868 …. 2.79 C Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163 …. 9.44, 9.71 Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 …. 9.45 Capricorn Inks Pty v Lawter International (Australasia) [1989] 1 Qd R 8 …. 9.23, 9.27, 9.31, 9.36, 9.37 Carus-Wilson & Greene, Re (1886) 18 QBD 7 …. 9.27, 9.28 Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (2012) 201 FCR 209 …. 9.72 — v — (No 2) [2012] FCA 1214 …. 9.50, 9.52, 9.73 Certain Phosphate Lands in Nauru (Nauru v Australia) (1989) ICJ Reports 12 …. 10.105, 10.109, 10.111 Chan v Zacharia (1983) 154 CLR 178 …. 13.30 Charlick Trading Pty Ltd v Australian National Railways Commission [2010] FCA 629 …. 6.90 Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60 …. 9.95 Churchill Mining and Planet Mining Pty Ltd, formerly ARB/12/14 v Republic of Indonesia (ICSID Arbitral Tribunal, Case No ARB/12/14 and 12/40) …. 9.84 Chocolate Factor Apartments v Westpoint Finance [2005] NSWSC 784 …. 9.96, 10.51 Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Ltd [2013] FCA 882 …. 9.73, 9.79 Comandate Marine Corp v Pan Australia Shipping Pty Ltd; (2006) 157 FCR 45; [2006] FCAFC 192 …. 9.61, 9.75 Commercial Bank of Australia v Amadio (1983) 151 CLR 447 …. 10.6 Commonwealth v Tasmania (1983) 158 CLR 1 …. 6.62

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Active Tree Services Pty Ltd [2011] FMCA 535 …. 8.31 Construction, Forestry Mining and Energy Union v Clermont Coal Mine Pty Ltd [2015] FWC 2023 …. 8.31 Cook v Taing [2014] VSC 428 …. 7.98 D Dampskibsselskabet Nordon A/S v Gladstone Civil Pty Ltd [2013] FCAFC 107 …. 9.79 Dank v Herald and Weekly Times Pty Ltd [2015] VSC 271 …. 8.87 Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1 …. 10.15 Dermot Grand Richard Walsh v Andre Marin Misseldine (unreported, CA (UK), 29 February 2000) …. 10.26 E Emerald Grain Australia Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414 …. 9.73, 9.79, 9.119 Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd [2013] FCA 356 …. 9.72 Ethiopia v S Africa; Liberia v South Africa (South West Africa Cases (Second Phase)) [1966] ICJ Reports 6 …. 10.103 F Field v Commissioner for Railways for New South Wales (1955) 99 CLR 285 …. 12.95 Forbes v New South Wales Trotting Club (1979) 143 CLR 242 …. 9.32 Franco Librizzi v Western Power Corporation (Unreported, Magistrates Court (WA), Commissioner Nisbett, 4 May 2006) …. 7.92 G Geogas SA v Trammo Gas Ltd [1993] 1 Lloyds Rep 215 …. 9.73 Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80 …. 9.77 Glenville Projects v North Melbourne [2013] VSC 717 …. 9.33 Golden Max Pty Ltd v Hurstville City Council [2015] NSWLEC 16 …. 7.75 Gollin v Karenlee Nominees Pty Ltd [1982] VR 493 …. 9.41 — v — (1983) 49 ALR 135 …. 9.41

Gude v Stephens (Domestic Buildings) [2007] VCAT 810 …. 7.36 Gujarat NRE Coke Ltd v Coeclerici Asia (Pte) Ltd [2013] FCAFC 109 …. 9.73 H Halifax Financial Services Ltd v Intuitive Systems Ltd [1999] 1 All ER 303 …. 2.32 Hammond v Wolt [1975] VR 108 …. 9.27 Hancock v Rinehart [2013] NSWSC 1352 …. 5.115, 9.60 Heart Research Institute Pty Ltd v Psiron Ltd [2002] NSWSC 646 …. 9.34 Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 …. 10.47 Henderson v McSharer [2013] FCA 414 …. 10.52 Higgins v Nicol (No 2) (1972) FLR 34 …. 6.90 Hill v Hill (Unreported, Supreme Court of New South Wales, Young J, 19 May 1997) …. 4.101 Hookway v MID Pty Ltd [2012] FCA 1456 …. 10.45 Holt v Cox [1997] NSWSC 144 …. 9.38 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 …. 13.30 I Idoport Pty Ltd v National Australia Bank; Idoport Pty Ltd & Market Holdings Pty Ltd v Donald Robert Argus; Idoport Pty Ltd ‘JMB’ v National Australia Bank Ltd (No 21) [2001] NSWSC 427 …. 4.14 Ing Bank (Australia) Ltd v Hung [2013] NSWSC 1924 …. 10.48 Ipoh v TPS Property No 2 [2004] NSWSC 289 …. 9.8 J Jeray v Blue Mountains City Council [2013] FCA 545 …. 7.106, 10.52 JMK Management Ltd v Range Resources Ltd [2012] FCA 961 …. 10.42 K Kable v Director of Prosecutions (NSW) (1996) 189 CLR 51 …. 10.72 King and Acclimitisation Society, Re [1913] St R Qd 10 …. 9.23 King Par LLC v Brosman Golf Pty Ltd [2013] FCA 640 …. 10.45 Koppen v The Commissioner for Community Relations (1986) EOC 92-173 …. 8.23 L

Legal and General Life of Australia v A Hudson Pty Ltd (1985) 1 NSWLR 314 …. 9.38, 9.41 Legal Services Commissioner v Mullins [2006] LPT 012 …. 6.109, 12.65, 12.66, 12.68, 12.101 Lewence Construction Pty Limited v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 228 …. 9.13 Linke v T T Builders Pty Ltd [2014] FCA 672 …. 9.95 Louis Vuitton Malletjer v Sonya Valentine Pty Ltd [2013] FCA 933 …. 10.82 M Mabo v Queensland (No 2) (1992) 175 CLR 1 …. 3.11 Magill v Magill [2006] HCA 51 …. 5.112 Masters v Cameron (1954) 91 CLR 353 …. 6.39 Mills v Mills (1938) 60 CLR 150 …. 13.30 N Najdovska v Australian Iron and Steel (1985) EOC 92-140 …. 8.38 New South Wales Corporal Punishment in Schools Case, Re (1986) EOC 92-160 …. 8.23 Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2008] QCA 160 …. 9.34 Northern Regional Health Authority v Derek Crouch Construction Co Ltd [1984] 1 QB 644 …. 9.32 Noun v Pavey [2014] NSWSC 429 …. 7.125 O Oasis Fund Management Ltd v ABN Amro Bank NV [2009] NSWSC 967 …. 5.120 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2012] FCA 558 …. 10.95 P Pflieger v Sparks (Unreported, Supreme Court of New South Wales, 9 March 1989) …. 9.95 Phillip Morris Asia Ltd v Australia PCA Case No 2012–12 (2012) …. 5.115, 9.83 Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10 …. 9.60, 9.61, 9.119 Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1 …. 5.112

Portugal v Australia (East Timor Case) [1995] ICJ Reports 90 …. 5.114, 10.105 Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 …. 7.75, 8.45 R Reiby Street v Winterton [2005] NSWSC 545 …. 9.13 Rinehart v Welker [2012] NSWCA 95 …. 10.136 ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 22 …. 8.45 Ruffles v Chilman (1997) 17 WAR 1 …. 10.75 S Sauber Motorsport AG v Giedo van der Garde BV (2015) VSCA 37 …. 9.78 Seven Network Ltd v News Ltd [2007] FCA 1062 …. 5.81, 5.96 — v — (2009) 182 FCR 160 …. 5.81 Shannon (in his capacity as receiver and manager of the North East Wiradjuri Co Limited) v North East Wiradjuri Co Limited (No 3) [2012] FCA 106 …. 9.96, 10.51 Sheahan v Thompson (No 2) [2015] NSWSC 871 …. 10.136 Shoalhaven City Council v Firedam Civil Engineering Pty Ltd [2011] HCA 38 …. 9.24 Sonray Capital Markets Pty Ltd (in liq), Re [2010] FCA 1371 …. 7.125 Southern Bluefin Tuna Case (Australia v Japan) (New Zealand v Japan) (1999) International Legal Materials 1624 …. 10.120 Stillman v Rushbourne [2014] NSWSC 730 …. 7.134 Subway Systems Australia Pty Ltd v Ireland (No 2) [2013] VSC 693 …. 6.90, 7.106 — v — [2013] VSC 550; [2014] VSCA 142 …. 9.60, 9.61 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 …. 9.96 Sutcliffe v Thackrah [1974] AC 727; [1974] All ER 859 …. 9.28, 9.32 SZTGN v Minister for Immigration [2014] FCCA 1467 …. 9.98 T TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electonics Pty Ltd [2014] FCAFC 83 …. 9.27, 9.79 — v the Judges of the Federal Court of Australia (2013) 87 ALJR 410 …. 9.74 Telstra Corp Ltd v Phone Directories Co Pty Ltd (No 3) [2014] FCA 949 …. 10.19 The Prosecutor v Bemba Gombo (Judgement) (International Criminal Court,

Trial Chamber III, Case No ICC-01/05-01/08, 21 March 2016) …. 10.121 Toonen case – Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April 1994 …. 10.114 Trevorrow v South Australia [No 5] (2007) 98 SASR 136; [2007] SASC 285 …. 13.30 U United Group Rail Services Ltd v Rail Corporation of NSW (2009) 74 NSWLR 636 …. 6.11, 6.97 V Vanden Driesen v Edith Cowan University (No 2) [2012] FMCA 1169 …. 7.125 Vienna Convention on Consular Relations (Paraguay v United States) [1998] ICJ Reports 4 …. 10.112 W Watton v Smart [2014] FCCA 2826 …. 2.84 Western Australia v Taylor (1996) 134 FLR 211 …. 6.103 Westport Insurance Corp v Gordian Runoff Ltd [2010] HCA Trans 233 …. 9.59 — v — (2011) 85 ALJR 1188 …. 9.59 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 …. 10.72 Woodbud Pty Ltd v Warea Pty Ltd (1995) 125 FLR 346 …. 9.55 WTE Co-Generation v RCR Energy Pty Ltd [2013] VSC 314 …. 6.9, 6.11, 6.97 Y Yosaph v Mammo [2002] NSWSC 585 …. 4.14

Table of Statutes References are to paragraph numbers Commonwealth Access to Justice (Civil Litigation Reforms) Amendment Act 2009 …. 4.93, 10.27 Administrative Appeals Tribunal Act 1975 …. 10.51 s 34F(a) …. 8.69 Administrative Appeals Tribunal Act 1984 …. 3.66 s 4 …. 3.66 s 34A …. 2.81 s 34A(1) …. 2.81 Age Discrimination Act 2004 …. 8.27 Australia Small Business and Family Enterprise Ombudsman Act 2015 …. 8.79 s 4 …. 8.79 s 13 …. 8.79 s 14 …. 8.79 s 17 …. 8.79 s 66 …. 8.79 s 71 …. 8.79 s 71(4) …. 8.79 s 71(5) …. 8.79 s 72 …. 8.79 s 73 …. 8.79 Australian Competition and Consumer Act 2015 Sch 1 …. 6.7 Australian Consumer Law s 18 …. 10.6 Australian Human Rights Commission Act 1986 …. 8.27 Pt IIB Div 1 …. 8.10 Australian Small Business and Family Enterprise Ombudsman Act 2015 s 4 …. 9.43 Australian Solicitors Conduct Rules 2012 …. 6.106, 6.109, 12.55, 12.56, 12.57,

12.62 r 2.1 …. 12.57 r 2.2 …. 12.57, 12.60 r 4 …. 12.57 rr 4–6 …. 12.58 r 5 …. 12.58 r 7 …. 12.59 r 7.1 …. 12.59 r 7.2 …. 1.29, 6.106, 12.59 rr 17–29 …. 12.59 rr 30–33 …. 12.59 rr 36–43 …. 12.59 Carriage of Goods by Sea Act 1991 …. 9.45 Civil Dispute Resolution Act 2011 …. 1.27, 3.48, 3.64 ss 3–4 …. 1.27 s 4(1A) …. 10.45 s 6 …. 6.102 s 6(1) …. 3.48, 10.45 s 7(1) …. 10.45 ss 11–13 …. 10.45 s 12 …. 10.45 Conciliation and Arbitration Act 1904 …. 2.97, 8.28 Constitution s 51(xxxv) …. 2.97, 3.61, 8.28 s 72 …. 12.75 Copyright Act 1968 s 169B …. 8.72 Disability Discrimination Act 1992 …. 8.27 Evidence Act 1995 …. 12.92 s 131 …. 6.99, 8.36, 12.92 s 131(1) …. 12.92 s 131(2)(h) …. 12.92 Fair Work Act 2009 …. 5.16, 8.27, 8.30 s 3 …. 5.16 s 365 …. 8.30 s 368 …. 2.99, 8.30 s 376 …. 6.125

s 592(2) …. 8.30 s 595 …. 8.30 s 595(2) …. 8.30 Fair Work Regulations 2009 reg 6.01 …. 2.112, 9.22 reg 6.03B …. 2.112, 9.22 Family Law Act 1975 …. 2.84, 3.60, 8.27, 8.33, 12.28 Pt VII …. 12.28 Pt VIII …. 12.28 s 10F …. 2.84, 8.34 s 60I …. 1.27, 3.60, 7.111, 7.112, 10.44, 12.28, 12.30 s 75 …. 8.42 s 123 …. 8.35 s 123(1)(sg) Sch 1 item 31 …. 8.33 Sch 1 …. 8.36 Family Law Amendment (Shared Parental Responsibility) Act 2006 …. 2.45, 3.60 Family Law (Family Dispute Resolution Practitioners Regulations) 2008 …. 12.29 Pt 2 …. 7.112 Pt 3 …. 7.112 r 5 …. 12.29 r 6 …. 12.29 Family Law Reform Act 1995 …. 3.60 Family Law Rules 2004 …. 8.27, 8.36 Ch 12 …. 8.36 rr 1.04–1.08 …. 5.118 r 10.06 …. 8.36 r 12.03 …. 8.35 r 12.03(4)(a) …. 8.33 r 12.07 …. 8.36 rr 12.07–12.08 …. 8.33 r 12.07(1) …. 8.11 rr 12.10–12.11 …. 8.33 r 12.11 …. 8.20 r 12.11(1) …. 8.36 r 12.13(3) …. 8.33

Federal Circuit Court of Australia Act 1999 s 26 …. 10.51 Federal Court of Australia Act 1976 …. 3.64, 9.117 s 37M …. 9.117, 10.38 s 53A …. 1.28, 10.51 s 53A(1A) …. 1.28 s 53B …. 10.50 s 54A …. 9.94, 10.51 Federal Court Rules 1979 O 10 r 1(2)(g) …. 10.83 Federal Court Rules 2011 …. 3.64 r 1.32 …. 10.28 r 1.34 …. 10.28 r 20.11 …. 10.19 r 23.12 …. 10.34 r 28.65 …. 10.51 r 53 …. 10.49 Foreign Judgments Act 1991 …. 9.70, 10.125 Human Rights and Equal Opportunity Commission Act 1986 …. 8.37 Human Rights (Sexual Conduct) Act 1994 …. 10.114 International Arbitration Act 1974 …. 3.58, 9.70, 9.74, 9.76 s 2D …. 9.70 s 8 …. 9.1 s 16 …. 9.70 s 19(b) …. 9.72 Migration Act 1958 s 486E …. 6.125 s 486I …. 6.125 National Native Title Act 1993 …. 7.116 Native Title Act 1993 …. 2.97, 6.73, 6.103 s 31 …. 6.103 Racial Discrimination Act 1975 …. 8.27 Sex Discrimination Act 1984 …. 8.27 Trade Practices (Industry Codes – Franchising Regulations) 1998 Sch 1 …. 7.107 Australian Capital Territory

ACT Civil and Administrative Tribunal Act 2008 …. 2.73 s 30A …. 2.73 Building and Construction Industry (Security of Payment) Act 2009 …. 9.12 Civil and Administrative Tribunal Act 2008 …. 10.55 Civil Law (Wrongs) Act 2002 …. 10.55 s 19 …. 2.102 s 188 …. 6.125 Court Procedures Act 2004 s 52A …. 2.73 Court Procedures Rules 2006 r 1176 …. 10.51 rr 1178–5 …. 10.51 r 1180 …. 8.66 Courts Legislation Amendment Act 2015 s 5 …. 2.73 s 11 …. 2.73, 12.26 Discrimination Act 1991 …. 8.27 Human Rights Commission Act 2005 s 56 …. 12.13 New South Wales Administrative Decisions Tribunal Act 1997 …. 8.75 Anti-Discrimination Act 1977 …. 8.27 Building and Construction Industry Security of Payment Act 1999 …. 9.12 Civil and Administrative Tribunal Act 2013 s 37 …. 2.11 Civil Procedure Act 2005 Pt 2A …. 10.43 Pt 5 …. 9.93 s 30(4) …. 7.123 Commercial Arbitration Act 1984…. 3.58 Commercial Arbitration Act 2010 …. 9.27, 9.34, 9.47, 9.52, 9.55, 9.70, 9.72 s 1(1) …. 5.115 s 12 …. 9.70 s 16 …. 9.52 s 17 …. 9.51 s 19(b) …. 9.56

s 27 …. 12.19 s 27(8) …. 9.54 s 28(2) …. 9.54 s 28(3) …. 9.54 s 31 …. 9.54 s 34 …. 9.54 Community Justice Centres Act 1983 …. 3.28, 5.113, 7.109 s 22(2) …. 5.113 Community Justice Centres (Pilot Project) Act 1980 …. 3.28 Community Land Management Act 1989 …. 6.14, 9.15 Conveyancers Licensing Act 2003 s 44 …. 9.41 Court Procedures Rules 2006 r 3252 …. 9.48 Courts Legislation Amendment Act 2003 …. 10.51 Sch 8 …. 8.75 Evidence Act 1995 s 131(2) …. 7.123 Farm Debt Mediation Act 1994 …. 6.30, 7.117, 10.46 s 3 …. 2.73 Health Care Complaints Act 1993 …. 7.132 s 49 …. 7.132 Land and Environment Court Act 1979 s 6.2(2) …. 8.60 s 34–34AA …. 5.69 s 34(1) …. 8.45 Land and Environment Court Rules 2007 Pt 6.2(1) …. 8.56 r 6.2 …. 5.69 Legal Profession Act 2004 s 345 …. 6.125 Legal Profession Uniform Admission Rules 2015 s 17(1) …. 1.5 Legal Profession Uniform Law Application Act 2014 s 5 …. 5.41 Sch 2 s 2 …. 5.41 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

s 4.1.1 …. 6.136 s 4.1.3 …. 6.136 s 34.1.1 …. 6.107 s 34.1.3 …. 6.107 Legal Professional Uniform (Barristers) Conduct Rules 2015 r 11(d) …. 8.86 r 15(h) …. 8.86 Legal Professional Uniform Law 2014 s 179 …. 6.136 s 183 …. 6.136 Mining Act 1992 s 148(2) …. 9.48 Motor Vehicle Insurance and Repair Industry Code of Conduct …. 9.115 cl 10.3 …. 9.115 Oaths Act 1900 …. 12.74 Ombudsman Act 1974 …. 3.68 Police Act 1990 s 121–6 …. 5.15 Strata Schemes Management Act 1996 …. 6.14, 9.15 Uniform Civil Procedures Rules 2005 r 20.14 …. 9.93 r 20.20 …. 9.93 r 20.23 …. 9.93 Workers Compensation Act 1987 …. 9.100 Workers Compensation Regulations 2010 …. 9.100 Northern Territory Anti-Discrimination Act 1996 …. 8.27 Pt 6 Div 3 …. 8.38 ss 78–82 …. 8.38 Commercial Arbitration Act 2011 …. 9.27, 9.34, 9.47, 9.52, 9.55, 9.70, 9.72 s 12 …. 9.70 s 16 …. 9.52 s 17 …. 9.51 s 19(b) …. 9.56 s 27 …. 12.19 s 27(8) …. 9.54

s 28(2) …. 9.54 s 28(3) …. 9.54 s 31 …. 9.54 s 34 …. 9.55 Construction Contracts (Security of Payments) Act 2004 …. 9.12 Legal Profession Uniform Admission Rules 2015 Sch 2 …. 12.35 Legal Profession Uniform Conduct (Barristers) Rules 2015 …. 12.61 Ombudsman Act 1980 …. 3.68 Queensland Anti-Discrimination Act 1991 …. 1.27, 8.27 Barristers Rules 2011 …. 12.59 r 12 …. 12.63 r 15 …. 12.62 Building and Construction Industry Payments Act 2004 …. 9.12 Civil Proceedings Act 2011 s 41 …. 9.113, 10.51 s 43 …. 8.60 s 44(1)(b) …. 8.66 s 44(2) …. 10.51 s 45 …. 10.51 s 45(2)(b) …. 8.73 Commercial Arbitration Act 2013 …. 2.107, 9.27, 9.34, 9.47, 9.52, 9.55, 9.70, 9.72 s 12 …. 9.70 s 16 …. 9.52 s 17 …. 9.51 s 19(b) …. 9.56 s 27 …. 12.19 s 27(8) …. 9.54 s 28(2) …. 9.54 s 28(3) …. 9.54 s 31 …. 9.54 s 34 …. 9.55 Courts Legislation Amendment Act 1995 …. 3.53 Dispute Resolution Centres Act 1990 …. 3.29 District Court of Queensland Act 1967

ss 97–8 …. 1.28 Industrial Relations Act 1999 …. 3.61 Legal Profession Act 2007 …. 1.9 s 60 …. 12.101 s 223(1) …. 8.86 Magistrates Court Act 1921 ss 29–30 …. 1.28 Motor Accident Insurance Act 1994 s 45 …. 5.120 r 349 …. 5.22 Parliamentary Commissioner Act 1974 …. 3.68 Personal Injuries Proceedings Act 2002 …. 1.27 ss 36–9 …. 2.80 s 36(4) …. 2.80 s 37 …. 2.80 Queensland Civil and Administrative Tribunal Act 2009 …. 3.67 s 4(b) …. 3.67 s 75 …. 1.27 s 195 …. 2.115 Residential Tenancies and Rooming Accommodation Act 2008 …. 12.13 Ch 6 …. 8.10 Pt 1 …. 8.10 s 400 …. 12.13 Supreme Court of Queensland Act 1991 ss 102–3 …. 1.28 Sch 5 …. 8.72 Uniform Civil Procedure Rules 1999 …. 1.27, 3.53 r 5 …. 3.53 rr 335–45 …. 8.72 r 335(2)(a) …. 8.73 r 337 …. 8.65 South Australia Building and Construction Industry Security of Payment Act 2009 …. 9.12 Commercial Arbitration Act 2011 …. 9.27, 9.34, 9.47, 9.52, 9.55, 9.70, 9.72

s 12 …. 9.70 s 16 …. 9.52 s 17 …. 9.51 s 19(b) …. 9.56 s 27 …. 12.19 s 27(8) …. 9.54 s 28(2) …. 9.54 s 28(3) …. 9.54 s 31 …. 9.54 s 34 …. 9.55 Equal Opportunity Act 1984 …. 8.27 Ombudsman Act 1972 …. 3.68 Queensland Civil and Administrative Tribunal Act 2009 s 195 …. 9.15 Supreme Court Act 1935 s 65 …. 10.51, 10.83 s 65(5) …. 10.83 s 220(4) …. 10.83 Supreme Court Civil Rules 2006 r 4 …. 10.83 Tasmania Alternative Dispute Resolution Act 2001 s 3 …. 8.56 s 5 …. 8.59, 10.51 s 10 …. 8.60 s 11 …. 8.60 s 12 …. 8.60 Anti-Discrimination Act 1998 …. 8.27 Building and Construction Industry Security of Payments Act 2009 …. 2.114, 9.12, 9.13 Pt 5 …. 9.13 s 3 …. 9.13 Commercial Arbitration Act 2011 …. 9.27, 9.34, 9.47, 9.52, 9.55, 9.70, 9.72 s 12 …. 9.70 s 16 …. 9.52 s 17 …. 9.51

s 19(b) …. 9.56 s 27 …. 12.19 s 27(8) …. 9.54 s 28(2) …. 9.54 s 28(3) …. 9.54 s 31 …. 9.54 s 34 …. 9.55 Ombudsman Act 1978 …. 3.68 Supreme Court Rules 2000 …. 8.60 Workers Rehabilitation and Compensation Act 1988 s 421 …. 8.31 Victoria Accident Compensation Act 1985 …. 8.10 Building and Construction Industry Security of Payment Act 2002 …. 9.12 Civil Procedure Act 2010 …. 10.27, 10.51 Ch 3 …. 10.43 s 48 …. 8.74 s 65M …. 10.34, 10.51 s 77 …. 2.10 Civil Procedure and Legal Profession Amendment Act 2011 …. 3.64 Commercial Arbitration Act 2011 …. 9.27, 9.34, 9.47, 9.52, 9.55, 9.70, 9.72 s 12 …. 9.70 s 16 …. 9.52 s 17 …. 9.51 s 19(b) …. 9.56 s 27 …. 12.19 s 27(8) …. 9.54 s 28(2) …. 9.54 s 28(3) …. 9.54 s 31 …. 9.54 s 34 …. 9.55 Equal Opportunity Act 2010 …. 8.27 Judicial College of Victoria Act 2001 …. 12.76 Legal Profession Uniform Law Application Act 2014 …. 1.6 Ombudsman Act 1973 …. 3.68 Owners Corporation Act 2006 …. 6.14, 10.46

Victorian Civil and Administrative Tribunal Act 1998 …. 3.67 Western Australia Commercial Arbitration Act 2012 …. 9.27, 9.34, 9.47, 9.50, 9.55, 9.70, 9.72 s 12 …. 9.70 s 16 …. 9.52 s 17 …. 9.51 s 19(b) …. 9.56 s 27 …. 12.19 s 27(2) …. 9.47 s 27(4) …. 9.47 s 27(5) …. 9.47 s 27(7) …. 9.47 s 27(8) …. 9.54 s 27D …. 9.47 s 28(2) …. 9.54 s 28(3) …. 9.54 s 31 …. 9.54 s 34 …. 9.55 Construction Contracts Act 2004 …. 9.12 Equal Opportunity Act 1984 …. 8.27 Industrial Relations Act 1979 …. 8.10 Parliamentary Commissioner Act 1971 …. 3.68 Strata Title Act 1985 Pt VI …. 2.116, 9.96 Supreme Court Act 1935 s 51 …. 9.48 Workers’ Compensation and Injury Management Conciliation Rules 2011 …. 8.32 International Convention on the Elimination of all Forms of Racial Discrimination 1993 Art 14 …. 10.114 Convention on the Recognition and Enforcement of Foreign Awards …. 9.71, 9.72, 9.76, 9.110, 9.111, 9.118 Convention on the Rights and Enforcement of Foreign Arbitral Award …. 2.130 Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment 1993 Art 22 …. 10.114 Hague Convention on Choice of Court Agreement 2005 …. 10.126 Art 6 …. 10.126 Art 8 …. 10.126 Statute of the International Court Justice …. 10.103, 10.105, 10.106 Art 9 …. 10.110 Art 34 …. 10.103 Art 36(1) …. 10.105 Art 36(2) …. 10.105 Art 41 …. 10.107 Art 59 …. 10.107 Art 65 …. 10.103 Arts 65–8 …. 10.108 UNCITRAL Arbitration Rules …. 9.82 UNCITRAL Model Law on International Commercial Arbitration 1985 …. 9.51, 9.70, 9.72, 9.73, 9.74, 9.118 Art 10 …. 9.81 Art 12 …. 9.70 Art 19 …. 9.73 Art 28 …. 9.73 Art 34 …. 9.56 Art 35 …. 9.73 Art 36 …. 9.56, 9.73 United Nations Commission on International Trade Law …. 9.51 United Nations Convention on the Law of the Sea 1982 …. 10.120 Art 287 …. 10.120 Vienna Convention on Consular Relations 1963 …. 10.112 New Zealand District Court Rules 2014 cl 7.3 …. 10.83 United Kingdom Arbitration Act 1697 …. 3.58 Arbitration Act 1996 s 69 …. 9.73 Common Law Procedure Act 1852 …. 10.33

Table of Contents Detailed Table of Contents Preface Table of Cases Table of Statutes PART I Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5

THE DISPUTE RESOLUTION PANORAMA Lawyers, Lawyering and Dispute Resolution The Dispute Resolution Matrix Shaping Australian Dispute Resolution Values and Goals in Dispute Resolution Conflict and Disputes as Lawyers’ Business

PART II Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10

DISPUTE RESOLUTION SYSTEMS Processes Without Independent Interveners Facilitated Dispute Resolution Processes Advisory and Evaluative Dispute Resolution Processes Determinative Dispute Resolution Processes Litigation

PART III Chapter 11

DISPUTE RESOLUTION PRAXIS AND POTENTIAL Practice and Theory: The Interface

Chapter 12 Chapter 13 Index

Competence and Ethics in Dispute Resolution Dispute Resolution, Law and a Positive Professional Identity

Detailed Table of Contents Table of Contents Preface Table of Cases Table of Statutes PART I

THE DISPUTE RESOLUTION PANORAMA

Chapter 1

Lawyers, Lawyering and Dispute Resolution Chapter contents Introduction The profession of law DR and the nature of legal work Lawyering, DR expertise and upholding the rule of law The challenges of change for the legal profession DR as a response to the challenges facing the legal profession Legal education and DR: preparing lawyers of the future Legal education, the ‘Priestley 11’ and DR DR and the threshold learning outcomes Conclusion

Chapter 2

The Dispute Resolution Matrix Chapter contents Introduction What was alternative dispute resolution (ADR)? What is DR? Spectrums, pyramids, trees and a matrix DR typologies Typology 1: DR process focus Prevention-focussed DR processes

Interests-focussed DR processes Rights-focussed DR processes Power-focussed DR processes Illustrating typology 1 Typology 2: Independent interveners’ roles and functions An Australian DR matrix Self-help approaches Processes without impartial intervention Negotiation Collaborative practice Conflict coaching Partnering and alliancing Facilitated DR processes Mediation Facilitation Conferencing Family dispute resolution (FDR) Counselling Good offices and brokering Advisory DR processes Conciliation Expert appraisal, case appraisal and neutral evaluation Fact-finding Determinative DR processes Arbitration Expert determination Adjudication Refereeing Dispute review boards Litigation Transformative DR processes Therapy Conflict coaching Transformative mediation Blended DR processes Med-arb Arb-med

Arb-med-arb Other blended processes Conclusion Chapter 3

Shaping Australian Dispute Resolution Chapter contents Introduction Indigenous DR in Australia Influences on the shaping of DR in Australia The shaping of community-based DR Australian developments in community-based DR The shaping of DR through civil justice reform Australian developments in civil justice system reform Institutionalisation of DR through the courts Institutionalisation of DR through tribunals and ombuds Tribunals Ombuds The people and organisations of DR in Australia NADRAC and the Australian Dispute Resolution Advisory Council The Resolution Institute The Bond Dispute Resolution Centre Australian Disputes Centre (ADC) Shaping the future of DR in Australia Conclusion

Chapter 4

Values and Goals in Dispute Resolution Chapter contents Introduction Understanding values and goals A philosophical framework for DR values and goals: Democracy and the rule of law The values of contemporary Australian DR: Justice, party autonomy and community Justice as a DR value Justice as fairness Fairness in DR — the goal of procedural justice

Fairness in DR — the goal of substantive justice Procedural and substantive justice and informed consent Fairness in DR — the goal of impartiality The DR value of party autonomy The DR value of community Access to justice in a civil society Access to justice through DR The important role of lawyers Conclusion Chapter 5

Conflict and Disputes as Lawyers’ Business Chapter contents Introduction Elements in the conflict crucible Conflict and disputes The participants in conflicts and disputes The interveners DR process outcomes Other conceptual elements Nature, causes and diagnosis of conflict and disputes Categories of conflicts and disputes The nature and dimensions of conflicts and disputes Cognitive and social biases in conflict Positions and interests in conflict situations Dispute diagnosis and interventions Escalation and de-escalation of conflicts and disputes Appropriate defining of disputes Adversarial and non-adversarial approaches to managing conflict Managing conflicts constructively Effectiveness in conflict management and dispute resolution Practitioner functions in conflict management Power in dispute resolution Law and lawyers in the business of conflict and disputes Transactional lawyering Dispute resolution lawyering Conflict escalation and the law

Lawyers and dispute resolution processes Lawyers and regulation in dispute resolution Conclusion

PART II

DISPUTE RESOLUTION SYSTEMS

Chapter 6

Processes Without Independent Interveners Chapter contents Introduction Party self-help Assisting self-help parties Institutional assistance Lawyer assistance Conflict coaching Counselling and related assistance Negotiation Definition and purposes Normative dimensions of negotiation Models and styles of negotiation Transactional negotiation DR negotiation Nature and motivation Participants Negotiation procedure Negotiation scope and content Negotiation outcomes and effectiveness Negotiation impacts Negotiation preparation Synthesis Regulating negotiation conduct and ethics Collaborative practice Alliancing and partnering Lawyers and DR without independent interveners Conclusion

Chapter 7

Facilitated Dispute Resolution Processes Chapter contents

Introduction Facilitation Mediation Definition and description Mediation values Mediation models Settlement mediation Facilitative mediation Transformative or therapeutic mediation Evaluative or advisory mediation Synthesis Mediation structure and procedure Mediator’s opening Party initial statements Problem definition and agenda Discussion and exploration Generating options, bargaining and problem-solving Final decision-making, recording and closure Preliminary mediation activities Mediator selection and appointment Organisational preparation The role of lawyers Agreement to Mediate Post-mediation activities Variations in structure and procedure Joint sessions Separate sessions Shuttle mediation Electronic, online and telephonic communication Adjournments, suspension and termination Mediator functions and capabilities Applications of mediation Commercial disputes Building and construction disputes Community disputes Family disputes Industrial, employment and workplace matters

Native title claims Farm debt disputes International commercial disputes Critical issues in mediation Conciliation Other facilitative–advisory processes Lawyers in facilitated processes Conclusion Chapter 8

Advisory and Evaluative Dispute Resolution Processes Chapter contents Introduction Conciliation Definitional distinctions between conciliation and mediation The values and goals of conciliation Conciliation procedures Applications of conciliation Industrial and workplace applications Conciliation in family law Anti-discrimination conciliation Blended conciliation processes Issues in conciliation practice Expert appraisal, neutral evaluation, case appraisal Evaluation and appraisal procedures Issues in evaluation and appraisal Ombud institutions Lawyers and the advisory processes Conclusion

Chapter 9

Determinative Dispute Resolution Processes Chapter contents Introduction Underlying values and attributes Adjudication Expert determination Features and procedures Distinguishing expert determination from arbitration

Procedural fairness Courts and compliance Enforceability Applications of expert determination Arbitration Definition and attributes Procedure Enforceability and the courts Applications International determination systems International commercial arbitration Arbitration in investment and trade disputes Arbitration in international consumer disputes Quasi-determinative processes Referees Assessors Med-arb Arb-med-arb Other quasi-determinative processes Lawyer involvement in determinative processes Conclusion Chapter 10

Litigation Chapter contents Introduction Values and goals of litigation Litigation in Australian domestic law Traditional common law litigation Critiques of common law litigation Alternative litigation systems Case managing litigation Pre-litigation requirements ‘ADR’ in court-based litigation Organisational factors Pre-appeal dispute resolution The multi-door courthouse Court-aligned DR in perspective

Judicial dispute resolution Constitutional considerations Compatibility arguments Performance-based questions Accountability considerations Non-adversarial justice in the courts Evaluation International litigation systems International court of justice Other international adjudication The future of litigation — online courts Lawyers, courts and litigation Conclusion

PART III Chapter 11

DISPUTE RESOLUTION PRAXIS AND POTENTIAL Practice and Theory: The Interface Chapter contents Introduction DR Praxis The importance of an evaluative approach to DR Putting theory into practice Praxis and DR advocacy The adversarial advocacy hat The non-adversarial advocacy hat A new legal culture of advocacy Summary Praxis and informed consent in NLDR The meaning of informed consent in NLDR systems A framework for achieving informed consent in NLDR Summary Praxis and the shadow of the law Overstating the role of the law Uncertainty of the law Summary Praxis and reflective DR practice Reflective practice supports emotional intelligence in DR

Reflective practice supports the development of a professional identity Conclusion Chapter 12

Competence and Ethics in Dispute Resolution Chapter contents Introduction Competence in DR Substantive knowledge Determinative processes Advisory processes Facilitative processes Blended processes Procedural knowledge and skills Determinative processes Advisory processes Facilitative processes Recognition, training and accreditation The National Mediator Accreditation System (NMAS) The Family Dispute Resolution (FDR) system Conciliation processes The new DR competencies Emotion and dispute resolution Psychology, neuro-biology and DR Competencies for ‘new lawyers’ Extending the traditional legal competencies Adding to the lawyer’s toolbox Summary Ethics and DR Ethical rules for lawyers representing clients in DR Rules of ethical conduct for Australian solicitors Rules of ethical conduct for Australian barristers A case on point: Legal Services Commissioner v Mullins Summary Ethical rules for lawyers as interveners in DR processes Ethics for judges Ethics for lawyer arbitrators

Ethics for lawyers as conciliators Ethics for lawyer mediators Consequences of breaching ethical rules in DR contexts A moral compass for lawyers in DR processes Using a moral compass for ethical DR lawyering Future ethical NLDR paradigm Teaching ethics for DR contexts at law school Conclusion Chapter 13

Dispute Resolution, Law and a Positive Professional Identity Chapter contents Introduction Understanding a positive professional identity Conceptualising a positive professional identity for lawyers based on DR A professional ideology for DR practice in law Fidelity to the ‘good’ of dispute resolution A public DR ‘office’ Fitness for practice Summary The comprehensive law movement: putting the ideology for a positive professional identity for lawyers through DR into practice Collaborative law Creative problem-solving Holistic justice Preventative law Problem-solving courts Procedural justice Restorative justice Therapeutic jurisprudence Transformative mediation Summary Why a positive professional identity is important Professional identity and Self-Determination Theory (SDT) PERMA, DR practice and professional identity Positive emotion (P)

Engagement (E) Positive Relationships (R) Meaning (M) Accomplishment (A) Summary The development of a positive professional identity at law school Conclusion

Index

[page 1]

PART I The Dispute Resolution Panorama

[page 3]

Chapter 1

Lawyers, Lawyering and Dispute Resolution Chapter contents Introduction The profession of law DR and the nature of legal work Lawyering, DR expertise and upholding the rule of law The challenges of change for the legal profession DR as a response to the challenges facing the legal profession Legal education and DR: preparing lawyers of the future Legal education, the ‘Priestley 11’ and DR DR and the threshold learning outcomes Conclusion

1.1 1.3 1.16 1.32 1.40 1.53 1.58 1.63 1.69 1.80

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 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 [page 4] 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 selfregulation skills.6 In addition, successful lawyering [page 5] 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, [page 6] 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

[page 7] 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 [page 8]

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 profile indicated that at that time there were 6005 barristers in Australia, of whom

[page 9] 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 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 [page 10] 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 [page 11] 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. [page 12] 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 courtconnected [page 13] 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 [page 14] 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 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 [page 15] 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

[page 16] 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 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. [page 17]

The challenges of change for the legal profession 1.40 The legal profession has faced several challenges to the efficacy and value of its practices for some time, and it has faced criticism for its approaches to the delivery of legal services. Some would contend that lawyers are profit driven and discard ethics to win at all costs.84 Others see the legal profession ‘as practising on a 100-year-old platform that is out of date’.85 The Productivity Commission has censured the civil justice system for being ‘too slow, too expensive and too adversarial’.86 Increasingly there is a call for effective, cheaper and more responsive legal services that are in tune with the imperatives of a globalised world.87 1.41 Economic pressures on legal services have been prompted by many factors, including financial and economic volatility and market competition. Empowered clients now have a stronger voice in determining what services they need and how much they will pay for them. Client expectations and demands for improved cost and time efficiency and for responsiveness in the way lawyers deliver services are increasing.88 Advances in technology, moreover, are exponentially increasing the pace of legal practice. Lawyers must be equipped not

only with legal knowledge, skills and attitudes, but also with an understanding of new technologies and an ability to implement them. Problems arise when clients are ahead of lawyers in terms of technology, particularly when they are able to access much of the legal information and resources they need online. At the same time technology does create opportunities for smaller practices to compete more effectively with larger firms. 1.42 Richard Susskind first challenged the legal profession to rethink its position in society, the nature of legal work and legal service provision, and the construct of a lawyer’s professional identity, in his 2008 work The End of Lawyers?.89 His next work, Tomorrow’s Lawyers published in 2013, also provokes the legal profession to engage with profound challenges to familiar ways of knowing, working and being.90 Susskind’s predictions are for significant future change in the practice of law and the provision of legal services. There may be disagreement over the details of his forecasting, but the general direction and tenour of his arguments are compelling. Susskind has said, [page 18] for example, that we are witnessing the decline of the ‘Golden Age of Law’ as we have known it, and that new ways of working and providing legal services more efficiently and collaboratively will replace the practices of the past. He predicts that our relatively staid and conservative profession will see more change in the next two decades than it has in the last 200 years. To cope with this change the profession will need to be grounded, resilient, flexible and responsive. As a profession, we will need to shift from a reactive to a proactive focus. We will be required to rethink our practices, reconceive our ethics and values, reframe legal education to more effectively prepare future practitioners, and actively work to protect our psychological well-being. 1.43 Susskind’s prediction is that there will be an end to traditional forms of legal work because the market will reject the model of expensive lawyers delivering relatively standardised tasks. Instead the law firms that survive into the future will be ones that use smarter systems and processes that can complete required tasks just as well, if not to a better standard, and more cheaply.91 1.44 Some of Susskind’s forecasts are already manifesting themselves with the

legal marketplace being transformed by developments in technology, an increasing emphasis on collaboration, and the forces of globalisation. The traditional law firm business model, and customary ways of doing legal work, cannot survive these developments. Instead legal services are set to move through stages of standardisation and systematisation to packaging and commoditisation. Furthermore, disruptive legal technologies will fundamentally challenge and change the way the legal sector operates. As Henderson has stated, ‘the legal profession is becoming a subset of a larger legal industry that is increasingly populated by non-lawyers, technologists, and entrepreneurs’.92 1.45 Susskind’s commentary, concerns and predictions build on a wealth of work before him. In 1993 Anthony Kronman, Dean of the Yale Law School, famously referred to the American legal profession as being in ‘crisis’ and ‘in danger of losing its soul’.93 He said the crisis was one of morale, that it was a spiritual crisis resulting from ‘growing doubts about the capacity of a lawyer’s life to offer fulfilment to the person who takes it up’ and striking ‘at the heart of professional pride’.94 Kronman identified the key virtue of both skill and character for lawyers as being practical wisdom or prudence — the ability to discern and deliberate well.95 This key virtue, he said, has ‘been marginalized [page 19] by the scholarship of law professors, the case load of the judiciary, and structural changes in law firms’.96 1.46 Other commentators have also contributed to the dialogue about the challenges faced by the legal profession. For example, in 1996 Harvard law professor Maryann Glendon published A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society.97 In that work Glendon argues that the legal profession is being challenged by turbulent currents of change. Using the narratives of lawyers and laypersons, she links the future of the legal profession with that of American democracy. In Australia, Justice Michael Kirby, one of our most esteemed High Court judges, called in 1996 for the legal profession to re-engage with its traditional idealism and noble values by revisiting the profession’s values and ethics. This, he said, was necessary to address the impact on the profession of factors such as economics, competition and technology.98 Ari Kaplan’s work, The Evolution of the Legal Profession: A

Conversation with the Legal Community’s Thought Leaders, opined in 2010 that the legal profession will not be able to avoid restructuring how it delivers legal services.99 1.47 In 2011 Susan Daicoff added her voice to the discussion of the profession’s future, stating that ‘the legal profession, if not the world, is in crisis.’100 She referred to the high levels of depression, anxiety, psychopathology, alcoholism and substance abuse among legal practitioners,101 commenting that ‘some lawyers are desperate for work that matters, makes sense, makes a difference, is moral, is valuable and valued and produces sustainable outcomes’.102 In her litany of issues evidencing the need for change in the legal profession, Daicoff cites challenging global economic conditions and their impact on unemployment levels amongst lawyers, increased needs for new, alternative and innovative forms of legal work, and the failure of traditional approaches to legal education in preparing graduates for the real world of legal practice.103 1.48 In 2013 Steven Harper’s The Lawyer Bubble: A Profession in Crisis examined the history of the profession to suggest that a legacy had been squandered, inheritances had been misused and the profession had lost its way.104 Harper, a trial lawyer of 30 years’ [page 20] experience, worked with a pre-eminent law firm known for adversarial litigation. His view was that the problems with the legal profession result from a lack of moral resolve. The claims in this and Daicoff’s work of a profession currently in crisis compound Kronman’s assertions of crisis made 20 years earlier. 1.49 From the consensus across these commentaries it is evident that some of the key contemporary challenges facing the legal profession relate to economic pressures, developments in technology and liberalisation forces in the legal services market. These factors are resulting in changes to client expectations, they are impacting the way lawyers work and they are affecting the professional identity of lawyers. As a result of these developments, lawyers could increasingly lose the power and control they have traditionally exercised over their methods of legal service provision and clients will start calling the shots. More and more,

market forces, not lawyers, will shape the nature and form of legal services;105 and the markets are now demanding more efficient and effective and more imaginative and innovative legal services. 1.50 The inevitable conclusion from this discussion is that lawyers’ work will have to be undertaken differently, using alternative methods, if the profession is to meet the market’s expectations for quality legal services delivered more responsively and efficiently. The legal profession — traditionally relatively conservative and slow to change106 — is now expected to keep up with the rapid societal transformation that surrounds it. This is not necessarily a crisis, but it is a challenge. 1.51 The collapse of the global economy in late 2007 was a catalyst for some of this change, and as the health of the world’s economies continues to ebb and flow post ‘GFC’ (global financial crisis), the legal profession is unlikely to be able to return to its previous ways of operating. Further, small and incremental change, to which the legal profession has traditionally been accustomed, at least in the Western liberal democracies, will no longer be an adequate response. Rather, more radical changes are required and those who do not embrace a new direction for the profession are at risk of being left behind. Familiar ways of working are, to use Susskind’s phrase, ‘decomposing’.107 For example, research, administrative and process-based aspects of legal work, often fulfilled by the junior lawyers of a firm are progressively being undertaken by less qualified people or by computers.108 In order to deliver the savings demanded by clients, fee arrangements [page 21] are also being modified in some firms from the inefficient and professionally stressful hourly billing approach109 to fixed-fee pricing.110 1.52 As we noted above, the issues facing the legal profession have been identified by some as a crisis. However, in our view, this perception of crisis should in fact be reframed as challenge, and with challenge comes opportunity. The next section discusses how DR practice can be harnessed as a positive response to the current imperatives facing the legal profession.

DR as a response to the challenges facing the legal profession 1.53 The transformations in the functioning of the legal profession around the world are a direct threat to many lawyers — a threat to their livelihoods and their professional identity. It is confronting to be told that your profession has engaged in a massive long-term misallocation of resources and has actively ignored opportunities to develop better processes for providing legal services. It is difficult to engage with criticism of how the ‘honourable’ and ‘noble’ profession of law is failing to serve the access to justice needs of the populace in liberal democratic societies. Whilst it may seem an exaggeration to say that the profession has been in a perpetual crisis for the last 20 years, the perspectives and developments discussed above certainly cannot be ignored. The evidence of real and irreversible trends requires us to engage with a new professional environment, and to forge a new direction. The way forward is not to respond to these challenges with anger or denial but with a sense of opportunity that the new environment brings. As Daicoff points out, the Chinese character for ‘crisis’ is made up of a ‘combination of two elements: danger and opportunity’.111 1.54 The opportunities for change offered by the challenges and threats to the legal profession’s status quo will be grasped by lawyers who can be flexible, agile, open-minded, resilient and entrepreneurial in creating and navigating new forms of legal business and new legal careers. Innovative service provision will be smarter, more efficient and more effective. It will reach a broader range of clients, and better satisfy society’s need for legal assistance and access to justice.112 1.55 As we demonstrated above, DR already holds an important place in legal practice, but it will become even more important in the future world of legal work. [page 22] As discussed throughout the chapters of this text, lawyers with DR expertise will be in the best position to harness the necessary knowledge, skills and attitudes to respond to the demand for new forms of legal service provision. Lawyers with

DR expertise will be able to think creatively, analytically and innovatively to design dynamic and streamlined approaches, and they will play a pivotal role in envisioning and enacting a radically transformed profession. Lawyers who are fluent in the language and customs of DR will be the ones who are able to communicate more effectively with clients, advise and assist them with efficiently managing their affairs, and support them to access ‘more efficient, less costly, and less combative’ ways of resolving disputes.113 1.56 Chapter 6 of The End of Lawyers is entitled: Resolving and Avoiding Disputes. In that chapter Susskind highlights new ways of developing lawyer– client connections and synergies, using social media and online platforms. He envisages legal work becoming more technology driven, explaining how IT will support access to justice and facilitate DR. He offers insights into the future workings of the judiciary with the development of courtroom technology and online DR. If Susskind is correct, the legal profession will soon be dominated by legal knowledge engineers, online DR specialists, legal technologists and specialists in dispute containment, dispute avoidance and legal health promotion. 1.57 In this brave new world, DR competence becomes critical for lawyering. This realisation forces us to ask whether our legal education system is adequately preparing new graduates entering the profession with the necessary knowledge, skills and attitudes to enable them to thrive professionally. Until DR becomes a core compulsory subject in all law degrees in Australia (and beyond) we would argue that legal education is in fact letting students down. Law students are the future of the profession, but a 20th century legal education will not equip them with what is necessary to succeed in the profession of the 21st century. The next section therefore argues for changes in legal curricula to ensure that all law graduates leave law school with foundational levels of DR competence.

Legal education and DR: preparing lawyers of the future 1.58 DR expertise is central to the future of legal practice, and so it logically follows that it should also be central to the content of legal education.114 The law school curriculum is the foundation for the preparation of prospective lawyers, and DR is a fundamental element of their professional competence. It is rational

and reasonable, then, to infer that if law schools fail to ensure that students leave law school equipped [page 23] with foundational levels of DR competence, they are failing not only individual students in terms of work readiness and future employability,115 but also the profession more broadly in terms of its capacity to move positively into the future. As Duffy and Field have said, there simply isn’t ‘a sensible counterargument that measures up against the combined weight’ of the arguments in favour of including DR as a compulsory subject in the law degree.116 1.59 While DR is already a part of elective curricula offerings in most Australian law schools, this is neither adequate nor sufficient. In order to properly prepare legal practitioners of the future, DR must be one of the core compulsory subjects of every law degree, and this entails its inclusion in the suite of subjects which are compulsory for admission to the profession.117 Other Australian DR writers such as Tom Fisher and Judy Gutman,118 Kathy Douglas,119 James Duffy120 and Tania Sourdin121 have all argued before us that DR should form part of the legal education curriculum, and they have all made significant contributions to the movement to see this happen. In 2012 the National Alternative Dispute Resolution Advisory Council (NADRAC) also persuasively petitioned in its paper, Teaching Alternative Dispute Resolution in Australian Law Schools,122 for the mandatory inclusion of DR in the law curriculum.123 1.60 Further, leading Australian legal academics, such as Richard Johnstone and Mary Keyes, Sally Kift and David Weisbrot, have been saying for many years that legal education needs to keep up with the developing requirements of legal practice, particularly by ensuring that law graduates are equipped not only with legal knowledge [page 24] but also with the necessary skills and attitudes, such as those taught through DR,

in order to be agile in responding to the challenges of change in professional legal practice.124 1.61 We argue for the inclusion of DR in the core law degree subjects both because it is necessary to ensure the degree is current and relevant and also because teaching DR at law school can satisfy each of the six Threshold Learning Outcomes for Law (TLOs)125 in a way that is authentic and engaging.126 The TLOs acknowledge that law graduates need to leave law school with more than just knowledge in key areas of the law.127 They confirm that a lawyer’s education is inadequate and incomplete if it omits attention to the technical practicalities of what to do with legal knowledge, and how to be a lawyer. 1.62 The Australian TLOs for Law were developed in 2010 as part of a higher education standards imperative of national and international reach across the broad range of disciplines. The TLOs were also a response to address the persistently strong emphasis in the law curriculum on doctrinal legal knowledge, and to the absence of an adequate focus on legal skills and attitudes.128 The TLOs, which have been endorsed by the Council of Australian Law Deans,129 encourage law schools to offer a balanced legal education which integrates intellectual content with the practical and procedural.130 Before considering the TLOs and how the teaching of DR can effectively be harnessed to satisfy their elements we briefly discuss the place of DR in the Australian legal curriculum. [page 25]

Legal education, the ‘Priestley 11’ and DR 1.63 As the Chief Justice of Australia, Robert French, acknowledged some years ago, ‘the objectives and content of legal education, and how it should be undertaken, have been much discussed in Australia and in other countries with which we share our legal heritage’.131 The discussion has tended to focus on the tension between teaching doctrinal, substantive legal knowledge, on one hand, and inculcating practical skills and professional attitudes, on the other.132 1.64 Traditionally in law school curricula there has been, and remains, a strong emphasis on doctrinal discipline content — that is knowledge of the substantive law (found in legislation and case law).133 This is a result of the

continued influence on the content of the Australian law curriculum of the Priestley 11 subjects134 — 11 subjects agreed in 1976 as requirements for students to be eligible for admission to the legal profession, and which remain the core compulsory components of Australian law degrees.135 These subjects are all important ‘building block’ areas of law and their study undoubtedly assists students to construct a foundational knowledge base of legal principles. It is notable, however, that DR is not included in the compulsory subjects, which in the context of the history of reforms to the civil justice system discussed in Chapter 3, is a significant curriculum omission in terms of adequate preparation for modern legal practice. 1.65 There have been reviews of the Priestley 11 over the years, most recently in 2015, when a number of submissions were made advocating for the inclusion of DR [page 26] in the core subject requirements.136 However at the time of writing, the prevailing view continues to mirror that expressed by the New South Wales Legal Profession Admission Board in 2011, namely that ‘the Priestley 11 subjects are necessary and sufficient for satisfying the academic requirements for admission’.137 1.66 Although the Priestley 11 subjects remain in force they have been the subject of some criticism. The key criticism, unsurprisingly, is that the doctrinal focus of each subject excludes attention to important legal skills and values. Our discussion above about the skill and attitudinal competencies that will be demanded of future practitioners supports queries about the relevance and currency of the Priestley 11.138 As Weisbrot has eloquently stated: There is a ‘powerful disconnect that has emerged between the focus of teaching and learning in most law schools in Australia — that is, the mastery of a large number of bodies of doctrinal law — and the generic professional skills and attributes which law graduates require to succeed in the increasingly dynamic work environment in which they find themselves. Although appellate case exegesis (in one field of doctrinal law after another) is one important skill for lawyers, it is by no means the only professional skill which law students and young lawyers need to acquire, nor is it arguably even the most important.139

1.67 From a comparative perspective Susan Daicoff, in her 2011 article on the legal profession’s future, refers to the irrelevance of legal education to the

realities of legal practice as a key problem demanding change. She cites Gerst and Hess’s report of a number of empirical studies of lawyers confirming an absence in legal education of the skills instruction actually needed to practice law.140 1.68 We also query, along with law students and the profession, whether the 11 current subjects ‘realistically equip students with the capacity to manage the dynamic nature of developments in the substance of Australian law’.141 We argue, and others agree, that the current list of 11 subjects will not be adequate until it includes DR.142 The Productivity Commission, too, in its Report on Access to Justice Arrangements has [page 27] advocated for a compulsory core subject on Alternative DR.143 In the next section we establish that including DR in the law degree will also assist law schools to demonstrate that they are adequately satisfying the TLOs for Law.

DR and the threshold learning outcomes 1.69 As we noted above, the TLOs were developed in 2010 and have the potential, in time, to change the persistent emphasis on doctrinal legal knowledge in legal education, and provide a foundational context for the acceptance of the importance of DR as a critical component of the law curriculum.144 Indeed, in 2011 it was suggested that the TLOs might in fact replace the Priestley 11.145 That idea was not endorsed by the Law Admissions Consultative Committee (LACC) but more recently, in 2015, submissions to LACC’s Review of the Academic Requirements have again suggested that the opportunity should be embraced to harmonise the Academic Requirements with the TLOs, which are said to ‘now represent the most contemporary and “vitally important” set of measures for Australian law schools’.146 1.70 Although the Priestley 11 and the TLOs have yet to be harmonised, the latter still provide an important standards benchmark for the provision of legal education in Australia,147 and they represent a significant shift in regulatory and educationalist imperatives.148 It is therefore timely that the content and pedagogy of DR subjects offer significant and unique opportunities for law

schools to meaningfully satisfy each of the TLOs, as we explain briefly below. 1.71 TLO 1: Knowledge: TLO1 recognises the place of doctrinal content as found in the Priestley 11 not least because, as the Australian Law Reform Commission (ALRC) noted many years ago, it is not ‘possible to teach legal professional skills effectively in a substantive vacuum’.149 DR is now, in its own right, an important and fundamental area of legal knowledge for contemporary practice, as represented in the content of this book. [page 28] DR knowledge includes the history and theory of DR, as well as the characteristics, benefits and disadvantages of the diverse process options that make up the DR matrix. Importantly, also, this knowledge can offer opportunities to make sense of other doctrinal areas of substantive knowledge through providing a framework within which to apply legal analysis and reasoning skills as well as to understand the range of positive professional values associated with helping people and upholding the rule of law. 1.72 TLO 2: Ethics and professional responsibility: As we discussed above, lawyers must understand DR to be able to effectively discharge their contemporary ethical duties to the law, the court and the client. TLO 2’s focus is on the attitudes and values of an ethical disposition; that is, having the capacity to make good professional judgments when faced with ethical dilemmas.150 The explanatory notes for TLO 2 state that the intention behind it is to ‘require graduates to recognise and reflect upon the professional responsibilities of lawyers to act in their public role’.151 We noted above the synergy between DR and concepts of lawyering related to upholding the rule of law, helping people and practising ethically. Further, this TLO is said to point ‘to lawyers’ roles in promoting justice and the values of fairness, legitimacy, efficacy, and equity in the legal system’,152 because ‘justice gives content, meaning and legitimacy to law and legal practice’.153 Addressing TLO 2 through a DR lens not only provides students with skills and attitudes relevant to modern practice but can also support their well-being by affirming the congruence of positive personal and professional meaning and values. 1.73 TLO 3: Thinking skills: The TLO authors envisaged that TLO 3 would

provide a wealth of opportunities for law schools to harness the potential of DR content. The Explanatory Notes clarify that the TLO requires graduates: to be familiar with a range of alternative dispute resolution processes, such as negotiation and mediation. Graduates should be able to appreciate the benefits of alternative and non-adversarial approaches, as well as formal adversarial approaches, and be able to use that appreciation to generate tailored responses to a legal issue.154

As ensuing chapters of this book demonstrate, the ability to identify and articulate legal issues is relevant to all effective DR practice in legal contexts, as is the ability to develop appropriate responses to those issues in order to inform reasoned choices about the best way to support a client’s interests and priorities. 1.74 TLO 4: Research skills: This TLO was not drafted with DR research particularly in mind. But the ‘intellectual and practical skills’ referred to in TLO 4 can all be taught well through research tasks associated with DR knowledge, skills and attitudes. These [page 29] areas, for example, provide interesting, engaging and practically relevant opportunities for students to develop information literacy skills, along with reading, comprehension, referencing and academic integrity skills. More generally DR offers a positive and rich learning and teaching context in which the development of law student research skills can be supported and nurtured. 1.75 TLO 5: Communication and collaboration: The Good Practice Guide for the implementation of TLO 5 calls on legal educators to ‘first start with basic communication theory and the development of interpersonal skills’.155 This sort of content and pedagogy is evident even now in almost every DR course in Australia, which consistently include instruction on how to communicate clearly, how to summarise, paraphrase and engage in various forms of questioning, and how to manage difficult conversations. These skills are transferable to all areas of legal practice. 1.76 TLO 6: Self-management: The self-management TLO is the most analysed and commentaried of the six learning outcomes for law.156 It was designed to ensure that legal education addresses some of the ‘affective dimensions of student learning with the intention of supporting students to

become careful, efficient, concerned, and curious learners, as well as resilient, independent and life-long learners’.157 It was also a response to consultation feedback with the peak bodies of the legal profession who indicated that ‘selfmanagement is fundamental to surviving and thriving in any type of legal practice’.158 1.77 Self-management and resilience are currently critical issues for the legal profession and its future sustainability.159 It is well established in Australia, and increasingly in other international jurisdictions also, that law students experience significant rises in symptoms of psychological distress (compared with general population levels), beginning in their first year.160 The distress levels do not dissipate [page 30] on graduation but carry on into law practice with significant consequences for the psychological well-being of the profession. In light of this evidence it has been argued that law schools have ethical duties to enact intentional curriculum and pedagogy design to reduce this negative impact and to ‘do no harm’.161 1.78 The teaching of DR offers opportunities for developing self-management capacities of students and increasing their psychological well-being. The 2009 Brain and Mind Research Institute (BMRI) report, specifically recommended ‘a greater emphasis in the legal curriculum on positive and collaborative lawyering through less adversarial approaches to legal problems and problem solving’.162 Howieson and Ford have demonstrated that the experience of learning DR can heighten law students’ sense of belonging at law school and support their learning engagement, both of which in turn contribute positively to students’ mental well-being.163 Howieson has also found that the specific pedagogical approaches adopted in DR education — with particular emphasis on active learning and experiential exercises such as role-plays — supports relatedness and connection between students through a level of interaction found to be statistically significant as a predictor of law student mental well-being.164 1.79 We have shown in this section that DR subjects are well placed to teach and assess students’ achievement of the elements of each of the TLOs — research, thinking, communication, collaboration, self-management skills,

ethical values and legal knowledge. On this basis we encourage all law schools to include DR as one of their core subjects.165 Law schools that do so166 will indicate to prospective students that they understand what is required to adequately prepare students for the future of legal practice. They will become the law schools that students look to for legal qualifications that are relevant, and that will support their employability prospects. [page 31]

Conclusion 1.80 DR is inextricably part of the new vision of the legal profession. It is central to the efficacy of current and future lawyering and congruent with the philosophical framework the rule of law provides for the practice of law. DR knowledge, skills and attitudes are critical factors in the profession’s response to increasing demands for more effective and efficient legal service provision. It is because DR is so central to the future of legal practice that it should also be central to the design of the legal education curriculum.

1.

2.

3.

4. 5. 6.

7.

Neil McMahon, ‘Too Many Lawyers: Future-Proof Your Degree’, Sydney Morning Herald (online), 3 August 2015, . See, eg, Roscoe Pound, Lawyers from Antiquity to Modern Times (West Publishing Co, 1953); Robert J 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). 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). 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). See Nickolas James and Rachael Field, The New Lawyer (Wiley, 2013) ch 1. 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 . James and Field, above n 5, 22–4. For further discussion of the history of Australian legal education see

8. 9.

10. 11.

12. 13. 14.

15. 16. 17. 18. 19.

20.

21. 22. 23. 24. 25.

26.

also Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014) ch 2. Ibid. 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 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 . See the materials available through the Law Admissions Consultative Committee . 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. See, eg, Legal Profession Uniform Admission Rules 2015, s 17(1). In Victoria, eg, practicing certificates are issued by the Legal Services Board pursuant to the Legal Profession Uniform Law Application Act 2014 (Vic). See . 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. 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. Winkler, above n 14. Ibid. Edward D Re, ‘The Profession of the Law’ (2000) 15(2) Journal of Civil Rights and Economic Development 109, 111. 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). 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. 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). ‘The word profession is derived from the Latin professio or professionem which means to make a public declaration’: Re, above n 18, 110. Barber, above n 21, 112. Ibid. For example, the Legal Services Commission (LSC) of Queensland is empowered under the Legal Profession Act 2007 to initiate and prosecute disciplinary proceedings against lawyers and law practice employees. Gerard Brennan, ‘The Role of the Legal Profession in the Rule of Law’ (Address at the Supreme Court, Brisbane, 31 August 2007) 1.

27.

28. 29.

30. 31. 32.

33. 34. 35. 36. 37. 38. 39.

40. 41.

42. 43. 44. 45. 46. 47. 48. 49.

50. 51. 52.

53.

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). 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. 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 ChicagoKent Law Review 543. Ibid 28 referring to Pierre Bourdieu, The Essence of Neoliberalism (Le Monde Diplomatique, 1998) (English ed) . Kiefel, above n 28. See, eg, Legal Profession Admission Board of New South Wales, Admission Ceremony Factsheet (25 November 2014)