Dispute resolution is no longer a mere ‘alternative’ to going to court, which can be costly, combative and time-consuming. As dispute resolution comes into its own, particularly in areas of practice such as family law, in 2017 The College of Law hosted a Specialist Legal Conference tailored to experienced family law and dispute resolution practitioners. Insights spoke to Professor Laurence Boulle, an expert mediator who has chaired the National Alternative Dispute Resolution Advisory Council and the Mediator Standards Board. His mediation expertise has been recognised through his books, which have been published in seven countries and his presentations at conferences in Asia, Africa, Europe and throughout Australia. In particular, Professor Boulle has been examining the increasing prevalence of blended, or evaluative mediation, and hybrid mediation-arbitration forms of dispute resolution.
Efficiency, according to Professor Boulle, is driving this trend towards hybrid forms of dispute resolution, and it is not always a wholesome imperative.
“It was inevitable in this context that one of the perceived shortcomings of traditional mediation, namely that it could not guarantee an outcome, would be modified in med-arb (mediation-arbitration) and arb-med (arbitration-mediation) to make an outcome more likely,” observed Professor Boulle. “At the same time, courts and tribunals have seen mediation and other evaluative dispute resolution processes as a way to manage large caseloads.”
One of the advantages of advisory and evaluative dispute resolution is the subject-matter expertise possessed by the mediator or arbitrator. “The impartial interveners use their subject matter expertise and experience to guide the parties to an outcome which might be regarded as appropriate, or an outcome within the standard ‘range’ of appropriateness for that category of dispute. This kind of advisory process can involve conciliation, expert appraisal, case appraisal and blended forms of mediation.”
As dispute resolution continues to evolve, Professor Boulle predicted that increased use of technology would drive considerable innovation, as indicated by a recent flip report published by the NSW Law Society.
“As the legal and other professions change, they will develop specialist areas of practice in fact-finding, negotiation, problem-solving and other techniques which focus less on legal rights and duties and more on commercial and personal needs and interests,” said Professor Boulle. “There will inevitably be stronger connection between Australian developments in the field and those in the region, with Australia sometimes adopting overseas practices and sometimes providing models for those developing abroad.”
“The broader ambit of dispute resolution knowledge and skills will see applications in relation to many of the pressing issues of the day – carbon pollution, economic insecurity, mass movements of people, work stresses and corporate excesses – to name a few.”
As technology, cross-broader knowledge-sharing and other influences drive change in dispute resolution, Professor Boulle sees many opportunities for lawyers.
“The business of law is increasingly about problem-solving, which could involve negotiation, mediation, adjudication and even litigation. For lawyers, this means potentially redefining their role as ‘professional problem-solvers’. For mediators and arbitrators, the wide range of modern dispute resolution processes allows them to differentiate their services in terms of different client needs – for example, in workplace situations, family matters or foreign investment disputes.”