ALTERNATIVE DISPUTE RESOLUTION

The Commonwealth Attorney-General, the Hon. Robert McClelland MP, is keen to see alternative dispute resolution (ADR) processes being used wherever appropriate, including in disputes in which the government is involved, to reduce delays and costs within the legal system.

AGS has continued to support this focus throughout 2008–09: through involvement in relevant national bodies to promote this approach, by enhancing AGS’s capability to apply these processes, and by helping our clients to resolve disputes in this way wherever applicable.

Promoting alternative dispute resolution in the legal profession

Two of AGS’s top legal leaders are deeply engaged with external bodies concerned with ADR developments in the Commonwealth environment:

AGS Chief Counsel Litigation, Tom Howe QC, is a council member of the National Alternative Dispute Resolution Advisory Council (NADRAC), and is a participant in a Commonwealth inter-agency network that meets to consider and resolve ADR-related issues.
Simon Daley, Chief Solicitor, Dispute Resolution, currently chairs the Federal Litigation Section of the Law Council of Australia.

In March 2008, Tom and Simon, along with several senior AGS dispute management specialists, had been invited to participate in the joint workshop of the Federal Court of Australia and the Law Council of Australia, which focused on strategic approaches to case management in the Federal Court – and they continued their contributions to this work in 2008–09.

Building our capability

In order to enhance AGS’s capability in the ADR area, we reviewed international and national trends in dispute resolution, and subsequently developed a range of resources to be applied in our practice. Approximately 50 AGS lawyers have also attended courses of study in ADR. As a result, we have increased our capability to:

undertake strategic assessment of new disputes and consider ADR options
develop individual matter strategies and recommendations about dispute management options
ensure our lawyers are kept aware of key areas of Commonwealth policy and practice in dispute management
maintain a focus on professional development in ADR throughout our Litigation and Dispute Management practice.

Supporting our clients’ use of alternative dispute resolution

We focused on enhancing our clients’ knowledge and skills about various forms of ADR and when and how to use them in the Commonwealth environment. Tom Howe gave a national series of Government Law Group presentations on this topic for our clients around the country, and we also distributed a comprehensive review of ADR in our flagship publication, Legal Briefing.

On a daily basis, our lawyers are helping our clients to evaluate and engage in ADR processes across the wide range of disputes in which the government is involved – such as commercial disputes, compensation and common law claims, and administrative and employment law issues. At any one time, many of the disputes in which we are acting are in various stages of an ADR process, including settlement negotiations, negotiations to narrow issues or questions of liability, and preparation processes for court-ordered and private mediations.

Over a six-month review period, we estimated that at least 50 matters employed mediation or other ADR processes to wholly resolve disputes. In relation to one class of claims, AGS recommended that ADR be used for every claim, and so far each of these has been successfully resolved within a relatively short time. These results represent a substantial saving in time and cost to all parties.