In the face of life’s crises and the grinding impact of our court system, it’s time we re-examined how we resolve human conflict. After more than three decades in legal practice, I’ve witnessed countless individuals worn down with their rights bruised, spirits battered, and participants in the justice system burnt out. The delays, costs, and emotional toll of litigation have left many disillusioned.
As a child, I dreamed of becoming a lawyer to help people find resolution. But it didn’t take long after entering the profession to see the unintended consequences of our adversarial system. The process, though designed to deliver justice, often leaves behind exhaustion for litigants, lawyers, and judges alike.
I’ve often asked: why are we, the legal professionals, so burnt out? Why are litigants emotionally and financially drained by prolonged conflict?
Let’s start with a simple truth; conflict is part of life. As human beings, we all have different dreams, ideas, and goals. Sometimes, these differences lead to disagreements with ourselves, with others, or with the law. This can result in criminal charges or civil disputes, depending on the situation. The question is: how do we resolve them?
Admitted, lawyers are trained in adjudication, in crafting persuasive arguments backed by evidence. In court, there are no absolute rights or wrongs only facts and interpretations. Judges must sift through these and deliver decisions. This method, rooted in centuries of tradition, has its place. But it’s not the only way.
There exists another path, one taught in law school but too often overlooked. That is Alternative Dispute Resolution (ADR).
ADR encompasses a range of processes, including:
- Mediation
2. Conciliation
3. Arbitration
4. Collaborative Law
Each involves a third party facilitating resolution, often outside the rigid structure of courtrooms. ADR offers a healthier, more flexible, and cost effective way to resolve disputes, especially in civil, commercial, family, and workplace matters. Some even argue for its role in criminal proceedings, such as plea bargaining.
It is my hope that more lawyers embrace ADR not as a lesser alternative, but as a powerful tool to unclog our judicial system. Imagine a legal landscape with less burnout, more satisfaction, and outcomes that empower rather than exhaust. Mediation invites us to shift from entitlement and endless conflict to empathy, compromise, and shared understanding.
If we teach our children to share, to hold hands in conflict, and to accommodate others, why do we, as adults insist on the wearisome path of litigation?
Our court system is already embracing the treasure of ADR, however, some of our colleagues are still stuck in the old litigious part of resolution. Pre action procedure is mandatory with few exceptions. Nevertheless, some court users including lawyers try to circumvent the process. The Court is seen as a battle ground, not as a place of resolution. It’s a wake up call for everyone to use this alternate method.
As lawyers, we must remember that in representing our clients, we are administering justice. Our paramount duty is to the court, which ranks above the duty owed to our clients. We have an obligation to provide candid and honest advice to those we represent
Regulation 7 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 sets out the requirements for communicating of advice and provides as follows:
7.1 A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement.
7.2 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 matter.
This obliges lawyers to communicate honestly even about settlement, mediation, or procedural options, unless it’s already clear the client fully understands them
Over time, litigants often lose sight of the original dispute that triggered the litigation and become entangled in layers of secondary issues that have little connection to the initial conflict and continue to burden our courts with endless but mediatable issues.
In an ADR setting, parties can unpack these issues and engage with open, inquisitive minds. This process encourages meaningful questions and fosters a deeper understanding of the underlying causes of the conflict in a less adversarial environment. It also helps identify the more complex or “thorny” issues that need resolution.
Judicial officers actively encourage and support out of court settlements even at the trial stage recognising the value of resolving disputes collaboratively.
I am fortunate to work at Redgum Justice, a not for profit organisation, where we take pride in resolving clients’ issues swiftly and fairly, without compromising their rights. Our mediation service, though currently unfunded thrives on the generosity of volunteers and the dedication of in house mediators who bring both legal expertise and compassion to the table.
A change in how we view conflict resolution is a change toward a better society. ADR doesn’t compromise justice, rather it enhances it. It allows us to enjoy the fruits of resolution without the fatigue of battle. And that, I believe, is a reward worth pursuing.
