Disputes and conflicts occur whenever two or more parties have competing needs and interests, AND at least one of them chooses to assert themselves to satisfy their needs.
Parties usually resolve these situations peacefully and constructively, applying personal preferences and societal rules, tools and procedures to guide their responses. But sometimes things don’t work out, and if the parties refuse to back down, a dispute or conflict may arise.
Before early societies developed institutional rules (the “law”), such disputes were resolved by power. The stronger party simply took what they wanted by force.
When laws were introduced, they described the rights that citizens were entitled to assert, the means by which they could be asserted (through the officers of the law and the courts) and the consequences of non-compliance (punishment).
The legal system designed to enforce these rights was adversarial (combative) in the sense that it was designed to identify which side had the strongest right to prevail, according to the rules of law, through a system that required each side to attack the other’s arguments to see which would be left standing.
Arguably, this advance wasn’t as “civilising” as it could have been. Fast forward to modern days and we see that the best funded party is more likely to “win” once they get their dispute into the legal system, by simply expending resources to wear down their opponents.
If they ever get to court they have a better chance of winning because their better-resourced legal team will be more capable (read: “more powerful”) than the other. The outcome may therefore not have much to do with abstract notions of justice.
In recent years a third paradigm – interests – has been introduced, initially from the United States. In truth, its origins lie in the mists of oriental antiquity. The idea that disputes and conflicts could be more constructively resolved by addressing and responding to each party’s underlying needs and interests quickly polarises each situation: if the dispute is genuine, it encourages a systematic analysis of its root causes, and then proceeds to try to deal with those causes, usually through a facilitative process managed by an independent intermediary. If the dispute is purely tactical, and is designed to damage or provide unfair advantages, it will not respond to such a process, and is destined for resolution in the legal bear pit, where society’s full weight may be brought down on the alleged transgressor.
Litigation is the name of the adversarial process described above. It applies laws and procedures created by parliaments (legislation) and courts (precedents) to the facts of each case (evidence) – as determined by the legal process – to enable a judge to produce a binding decision (judgement).
Given that every progressive judge, attorney general, politician, legal academic, commentator and litigation participant agree that the process is insensitive to human needs, slow, stressful, expensive and relatively incomprehensible to the average citizen, the big question is: “why do we still use it?”
The obvious answer is: “because we haven’t yet come up with anything better”. But that leads us to the next section ……ADR.
Over the past 20 years, almost every court and tribunal in Australia has, to a greater or lesser extent, embraced and mandated ADR as part of its process, generally requiring parties to attempt mediation (managed negotiations) before being allowed to litigate into court.
The original process name imported from the USA in the late 1980s was “Alternative Dispute Resolution”, or “ADR”. This name challenged many judges who felt that it suggested that their litigation system had failed and therefore required replacement.
There were strenuous efforts to recast ADR as “Appropriate / Additional / Primary Dispute Resolution”, but the reality is that any dispute resolution process that is non-adversarial is clearly an alternative to litigation, although with a little ingenuity it is one that can readily be used to complement, rather than replace, the old system.
Today, if you’re almost anywhere in the legal system you’ll probably be ordered to try to resolve your dispute through mediation before being allowed to go to trial. Regrettably, the concept of mandatory mediation is profoundly contrary to the fundamentals of what was designed to be a voluntary, problem solving process.
It’s also been observed that since these mediations are invariably run by lawyers who are trained to be adversarial and paternalistic, it makes about as much sense as: “placing Dracula in charge of the blood bank”. Nevertheless, many disputes are resolved this way, usually by terrifying the parties about the costs of proceeding to court, whether they win or lose.
This is a relatively new development in the legal system. It’s only formally being applied to family law matters, although every truly client-focused professional has been applying its principles since Moses broke the tablets to any situation that requires collaborative problem solving, rather than battles to the death.
The principles behind collaborative law, or collaborative professional practice, are similar to those of solutionism, so we’ve been applying them for over 20 years and are 100% behind them now.
While collaborative law is a term that’s been formally adopted in the family law area, and therefore has a prescribed meaning and associated procedural requirements in the family law context, the concept of collaborative dispute resolution hasn’t yet been appropriated, or trademarked (to the best of our knowledge).
To our mind, it’s the process of working collaboratively with clients and relevant professional advisers, to identify and address personal, financial and/or commercial needs and interests, through a facilitated problem solving process that feeds a mediation process designed to produce consensual outcomes, that are reflected in a written agreement.
We approve, and are always happy to manage, or participate in, these processes. We’ve also been there ourselves for over 20 years, and have the scars to prove it.