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Are lawyers their clients' own worst enemy by being reticent to enter into interest-based negotiation prior to litigation?

The presentation will be an expansion of the article which appeared in the February 2010 issue of the Australasian Dispute Resolution Journal: "Mediation is good business practice" in which I described the reasons why mediation should be preferred as a first choice dispute resolution process.

In this presentation, I will first explain the principal concerns in respect of compulsory pre-litigation mediation – whether parties should be compelled to participate in a mediation, whether parties will be ready for such a mediation, whether the legal case should be pleaded and there should be discovery before mediation should take place and see generally, for example, the article by Cameron Green "ADR Where did the 'alternative' go? Why mediation should not be a mandatory step in the litigation process" in ADR Bulletin volume 12 number 3.

I will then examine the reasons why, in my view, mediation should be mandated before litigation commences and in particular concentrate upon the following points – the benefits of mediation before pleadings have been exchanged, the relatively small amount of money expended on legal costs, the freshness of the dispute and the attitude of many lawyers to dealing with disputes which otherwise might present a barrier to early mediation of disputes in so far as their training encourages a litigious approach, many are not familiar with or sufficiently familiar with interest based negotiation and are unduly concerned for clients' rights rather than their interests.

I will quote from recent remarks of the Victorian Chief Justice and the Chief Justice of the Federal Court in support of my view in respect of the legal profession.

The elephant in the room is really the many members of the legal profession whose conduct and attitude represent such a barrier to the process of early dispute resolution.

Whether we like it or not the reality is that in many firms lawyers are affixed to the litigation process, their practices are geared to the litigation process and their budgets, effectively, require them to maximise their handling of disputes.

Beyond that many are not familiar with the mediation process, many are uncomfortable with it, indeed some appear fearful of it, and many do not fully understand or appreciate the value of commercially directed interest based negotiation.

I think that the suggestion that lawyers have a case to answer in respect of their conduct and attitudes in dealing with the dispute resolution process should provoke their thinking.

Podcast: Listen to Michael talk about this session pre-kon gres (5 mins) >>

I am married with two grown up boys. In what little time I have away from my practice, I enjoy reading and the cinema and watching and playing most sports particularly golf.