Thursday, 26 May 2011

Otago University report - Court delays

Here is the link to the Otago University report.  It is of course New Zealand focused, however it has some useful comparative law insights.  The overall observations will no doubt have some resonance in other jurisdications.  The report contains a lot of statistics that make up its 200+ pages, however the first 20 pages will be of interest to ADR practitioners.


Active listening is said to be the key to a good mediator, but when it comes to talking it is important to reframe the issues clearly and in a way that provides a common statement of the parties interests and concerns.  Can anyone help with a comment on the differences in approach between reframing in interest based disputes, and reframing in values based disputes (i.e. moral issues). 

Court delays

After posting my other blogg I came across the following report released today: "A Preliminary Study on Civil Case Progression Times in New Zealand", by Otago University reasearchers.  I think it reflects some of my earlier comments about cultural change and inceintives.

It covers a lot but the following caught my attention:

  • Hon Geoff Davies, a retired inaugural judge of the Queensland Court of Appeal, which is part of the Supreme Court of Queensland, had warned there may be "a subconscious reluctance" on the part of lawyers, due to their adversarial mindset and perception of litigation as a business, to embrace reforms, which they perceived would reduce the fees they were able to charge. 

The report also refers to the role that local legal culture plays in assisting.  The term "local legal culture" refers to informal court system attitudes, practices, expectations, practitioner incentives, and professional courtesy. 

What are the incentives required for practitioners to adopt ADR into their practice routines?  

Getting to mediation

In new Zealand there is a general reluctance for lawyers to seek mediation as a means to resolve clients disputes (there is however a group who certainly understand its use and application).  This is dispite various statutes and court rules increasingly encouraging the use of ADR, and mediation in particular.  In some jurisdictions there are cost and process rules that incentivise the parties and their counsel to adopt ADR. 

Is this what is required for mediation to become a routine part of pre-litigation advice?  Does anyone have experience in a jurisdiction where mediation was at one time purely voluntary, but is now "institutionalised" in that it is part of the litigation track / court rules?  What was the uptake, and what culture changes did it evidence in practitioners understanding approach to dispute resolution? 

I would appreciate your thoughts.