Courts need a touch of disruption
This is an article i wrote which was recently published in The Australian newspaper.
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The Civil Justice System, unlike almost all other areas of human endeavour in Australia, has not yet had an effective major productivity review. Like many other industries courts need a touch of disruption to the way things have always been done.
The need is obvious as was identified by the Federal Attorney-General, George Brandis, QC, a few weeks ago when he acknowledged the need for a far reaching review of the Family Law system focusing on its undeniably adversarial, costly and delay ridden processes.
Such an important review should not stop with the Family Court. The whole Civil Justice System, both State and Federal, should closely note the success of Western Australia’s Chief Justice Wayne Martin’s court. His court proudly and publicly reports figures that confirm in that state in excess of 98% of civil claims resolve by agreement through the court’s approach to managing disputes, including the use of in-house mediators. The WA Supreme Court Annual Review 2016 acknowledges that “in spite of the fact that only about 2% of civil disputes being finalised by trial, it is necessary for the Court to utilise substantial judicial resources preparing reasons for judgment.”
This is not the message generally provided by our lawyers in the Civil Justice System. The message ought to be how courts and lawyers can best assist to resolve disputes without a trial through early identification of the relevant facts and issues, providing appropriate legal and dispute resolution advice and facilitating settlement or, in the few cases that proceed to trial, acting efficiently.
Changing the status quo always proves difficult. Trial or advocacy work has primarily been performed by barristers. Some senior barristers charge from $5,000 to $15,000 per day in court plus preparation. Some lawyers could not afford to hire themselves should they unfortunately find themselves as a personal litigant.
Whilst elite trial counsel are not representative of the Bar some, unsuccessfully fought a rearguard action within the NSW Bar Association to define barristers work as excluding the role of mediator. Since 2016 conducting the Alternative Dispute Resolution (ADR) process is now explicitly defined as “barristers work” in the Association’s Rules. However, pure mediation work is frowned upon by some of the Brahmins of the Bar. The Association continues not to award the title of Senior Counsel to successful ADR specialist barristers . The fact that a trail-blazer of mediation and an Australian mediator of the year, Mary Walker has not been made silk in NSW suggests a Luddite strain still in the ascendancy amongst the decision makers of the Bar.
Change is coming through judges and lawyers acknowledging their predominant role as facilitators of dispute resolution rather than respectively as referees and combatants in the determination of right and wrong at trial. When he was Vice-President of the Industrial Relations Commission of New South Wales, Justice Michael Walton, now a member of the Supreme Court championed an alternative and effective dispute resolution process called the BlueScope Model (see CFMEU v Macquarie Generation [2009] NSWIRComm 160). That agreed process required a member of the Commission actively to engage with the parties in conciliation and to identify the relevant issues which required arbitration and to arbitrate on them. It was ‘Conciliation on Steroids’ which saved both time and costs. Such an innovative approach could work elsewhere.
The Bar, because of its members’ historically predominant place in litigation should embrace change for its members’ sake and the public interest. I have long admired the new President of the NSW Bar Association Arthur Moses, SC. In the most recent edition of the Association’s journal BarNews, Moses thoughtfully reflects upon the problems facing the Bar and its significant numerical decline compared to the solicitors’ branch of the profession. He accepts that change is urgent. Good minds will differ on how to redress the problem. The crisis of the Bar is found in sharp relief with the smallest number of new silks in NSW announced last Friday since 1993.
If change is too slow, no doubt Parliament will have to act. Such action may bluntly diminish the role of the adversarial civil system in undesirable ways. The best change is one brought by the profession itself.
Signs of this acknowledgement, such as other State Courts adopting WA’s openness and accountability and Bar Associations fully acknowledging the importance of ADR, will be important steps in achieving the goal of just, quick and cheap resolution of our society’s disputes.
Jeffrey Phillips, SC
Denman Chambers, Sydney
