Ian Davidson SC and Deborah Lockhart

Abstract

In Australia, Alternative Dispute Resolution (commonly known as ADR) has grown significantly; not merely in the footsteps of its international popularity, but as a frontrunner in a global push for timely and cost effective dispute resolution. No ADR process has done this more so than mediation. It is estimated that 80-90% of civil cases are disposed of pre-trial in Australia.1 When speaking at the Australian Disputes Centre in 2017, NSW Chief Justice Tom Bathurst, stated that it is “fair to say now that ADR has evolved to the stage not merely of being additional or supplementary but complementary and integrative.”2 His Honour’s sentiments have been echoed by South Australia’s Chief Justice Chris Kourakis’ strategic focus on dispute resolution processes to overhaul civil litigation in South Australia, and further emphasised by Western Australia’s Chief Justice Wayne Martin’s remarks on the use of mediation before as well as during the litigation context.3

As legal professionals, we are increasingly called upon to employ different models of advocacy as we move through the diverse terrains of litigation, mediation, arbitration, expert determination, conciliation and facilitation. We must be ready to shift gears now more so than ever. Faced with an array of soils, grapes, ages and methods for the distillation of advocacy, this paper focuses on selecting a vintage with the right balance of flavours for the parties in the mediation process, to whom effective advocacy needs to be directed.

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* First presented at the Law Society of South Australia Forum, 2018.

Our thanks to Michelle Wang, ADC Intern and UNSW Student for her contribution to this paper

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1 Bornali Borah, ’Being the Ladle in the Soup Pot: Working with the Dichotomy of Neutrality and Empowerment in Mediation Practice’ Australasian Dispute Resolution Journal (2017): 28, 98.
2 Chief Justice Thomas Bathurst, ‘Off with the Wig: Issues That Arise For Advocates When Switching From The Courtroom To The Negotiating Table’ (Speech delivered at the Australian Disputes Centre, 30 March 2017) http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2017%20Speeches/Bathurst%20CJ/Bathurst_20170330.pdf.
3 Chief Justice Wayne Martin, Address at the 5th International Arbitration Conference, (Perth, 21 November 2017) <http://www.supremecourt.wa.gov.au/_files/5th%20International%20Arbitration%20Conference%20Martin%20CJ%2021%20Nov%202017.pdf>.