Lecture 13 LR

Guest Lectures and Rescheduling

  • Guest lectures are scheduled for the coming weeks.
  • The professional legal writing lecture with Mary Anne Kenny has been rescheduled to tomorrow. Mary Anne is a legal clinic veteran and practicing lawyer.
  • Next week, Stephanie Monk will speak on First Nations perspectives. She is an alumna and head of the women's legal service.

Introduction of Professor Lisa Young

  • Professor Lisa Young has been at Murdoch Law School for 33 years.
  • She specializes in family law and alternative dispute resolution (ADR).
  • She also teaches the ethics program.
  • Lisa is an accredited mediator.

The Reality of Lawyering

  • Most lawyers aren't in court often unless they are barristers or judges.
  • Law school teaches students to think like judges to analyze problems legally.
  • This is important for advising clients and drafting contracts.

Types of Lawyers

  • Transactional Lawyers: Focus on commercial and document side, like property law and contracts.
  • Litigation Lawyers: Specialize in dispute resolution but are not always in court.

Essential Skills for Lawyers

  • Negotiation
  • Communication
  • Writing
  • Understanding client needs beyond legal solutions

Dispute Resolution Matrix

  • Transactional lawyers contribute to dispute resolution by drafting contracts to avoid disputes.
  • Contracts should include remedies and arbitration clauses.
  • Badly drafted clauses can lead to disputes.

Ethical Context

  • Lawyers must consider ethical implications and client needs.
  • The Supreme Court admits and disciplines lawyers, with an inherent jurisdiction.

Moral vs. Ethical Obligations

  • Professional ethics, not personal morals, should guide a lawyer's behavior.
  • Example: The butterfly story highlights the conflict between morals and ethical duties.
  • Ethical obligations start even before admission to the bar.

Serving the Administration of Justice

  • Lawyers are officers of the court and serve the administration of justice, not just as hired guns.
  • This influences behavior in and out of court.

Code of Conduct

  • Western Australia follows the Uniform Law, including the Australian Solicitor Conduct Rules.
  • The Legal Practice Board and the Supreme Court regulate lawyers.
  • The system involves co-regulation with external oversight.

Consequences of Misbehavior

  • Consequences include being struck off the roll, suspension, fines, or conditions on practice certificates.
  • Personal behavior is also considered to ensure lawyers are fit and proper persons.

Ethical Rules and Choices

  • Lawyers have choices in aligning their moral code with professional obligations.
  • These choices affect where they work, the type of work they do, and the clients they serve.

Ways of Lawyering

  • Adversarial Lawyer: Exploits loopholes aggressively.
  • Activist Lawyer: Works for organizations aligning with their moral code (e.g., environmental causes).
  • Ethic of Care Lawyer: Prioritizes client relationships and moral positions, often in ADR.
  • Responsible Lawyer: Balances duties to the court and client needs, avoiding spurious actions.

Key Ethical Rules

  • Rule 3.1: A solicitor’s duty to the court and the administration of justice is paramount.
  • Rule 4.1: A solicitor must act in the best interests of a client, be honest and courteous, deliver services competently and diligently, and avoid compromising integrity.

Initial Client Consultation

  • Clients present problems that may involve various areas of law.
  • The focus shifts from immediate adversarial actions to understanding the clients’ actual needs.

Dispute vs. Issue

  • A dispute arises when parties can't resolve an issue themselves and need a third party.
  • Sometimes, legal action isn't necessary or appropriate, and alternatives should be suggested.

Negotiating Solutions

  • Lawyers need negotiation skills to facilitate resolutions.
  • This includes assisting clients in formal settings like private mediation.

Immediate Action

  • In some situations, immediate action, such as litigation, is necessary (e.g., parental child abduction).

Professional Obligations

  • Lawyers must not prioritize fees over client interests and must inform clients about alternatives to court.
  • Preparing for mediation should be the default approach due to high court costs.

Understanding Client Needs

  • Legal remedies (compensation, injunctions) may not always meet client needs.
  • Clients often seek fairness, justice, and money, but deeper issues may be more important.

Dispute Resolution Video Series

  • The lecture references a video series illustrating a dispute between a homeowner (Lauren) and a paving contractor (Jules).

Lauren's Perspective

  • Lauren needs her driveway fixed quickly to maintain her business image.
  • She seeks recognition from Jules for his responsibility in the faulty paving.
  • There's an immediate emotional need to be heard.

Jules' Perspective

  • Jules values his business reputation.
  • He perceives Lauren as overly critical and believes the damage resulted from misuse.

Importance of Interests

  • Focusing solely on legal rights can hinder resolution.
  • Collaborative law avoids telling clients their legal rights to promote amicable agreements.

Collaborative Law

  • Involves collaborative lawyers, financial advisors, and therapeutic counselors working as a team.
  • If no agreement is reached, lawyers cannot continue, creating a financial incentive for resolution.

Other Options and Medical Negligence

  • Exploring alternatives like apologies or complaints processes (e.g., in medical negligence cases) can be beneficial.

Client Instructions and Communication

  • Act on client instructions unless unethical.
  • Communicate politely and avoid blackmailing the other party.
Blackmailing example: $If my client doesn't get a cheque for \$10,000 by Wednesday$, then we are going to initiate proceedings and we're going do….$

Private Mediation

  • Private mediation involves accredited mediators who may or may not have legal training.
  • It can resolve disputes more affordably than court.

Mediation Contract

  • A signed contract ensures confidentiality and that communications are without prejudice.

Enforcing the confidentiality in mediation:

  • Is clearly very difficult but it's written in the contract that it's confidential but it's hard to enforce.

  • Also, without prejudice.
    Offer example:
    settlement=10,000
    actual = 100,000

  • Without prejudice means if I say in the mediation I will settle this for $10,000 I say it's worth $100 but I'm over this.

  • Just give me settlement and I'll walk away, when we end up in court fighting, the other party can't say Well, they offered to settle for settlement.

\therefore Offers \cap Communications \cap settle \implies can't~be~thrown~back~in~court .

Determinative vs. Facilitative Processes

  • Mediation is facilitative, aiming to help parties reach an agreement.
  • Arbitration and litigation are determinative, leading to a decision by a third party.

Arbitration

  • Arbitration involves a neutral arbitrator or panel making a binding determination.
  • It is common in commercial, construction, and international disputes.
  • Arbitration clauses are often built into contracts.

\text{arbitrator} \implies legally~trained\
\text{Deliver a judgement notice note} \rightarrow \text{ known as a written award which is enforceable. }

Legal Proceedings and ADR

  • Most legal processes involve some form of mediation or conciliation.
  • Participation is generally voluntary, though courts can order attendance without requiring genuine participation.

\text{Mediation: Should only ever be voluntary (Fact)} \implies \text{ Often court ordered, but never truly made to participate }.

Tribunal Example

  • The lecture references a dispute in SAT involving building issues, where a tribunal member and construction expert facilitated the process.

Mediation Defined

  • Mediation involves parties in dispute working with a neutral mediator to identify issues, develop options, consider alternatives, and reach an agreement.
  • The mediator determines the process rather than the outcome.
  • Common in small civil claims and family law matters.

Mediator's Role

  • Mediators guide, remain neutral, set rules, and confirm consent.

Conciliation vs Mediation

  • Conciliation is similar to mediation but involves a more advisory role.
  • Conciliators offer expertise and direction, especially in employment, equal opportunity, and consumer disputes.

What a conciliator will tell you

Okay, I hear what you say about that argument but you are never going to win in court.
That argument is not going to stand up. They will actually talk more about what will happen in court and they will give their view on things and they'll try and direct them a bit.

Mediation Process

  • Before mediation, the mediator meets with both parties to discuss the process and ground rules.
  • At the mediation, each party gives an opening statement without interruption.
  • The mediator reflects back what each party said to ensure understanding.

\text{Communication} \cap \text{Relationship} \implies \text{ something that we need to address in a dispute}.

First Facilitated Discussion

  • Then put up a board
    Have options of ways to solve this, put everything up there, doesn't matter if it's crazy or whatever, and then hopefully at the end they come to some kind of agreement.

Private Sessions

  • The mediator conducts private sessions to help parties explore interests and consider solutions.
    Thereafter, putting up a board etc.
  • Agreement may not be reached on all issues, but success rates are high due to increased understanding and being heard.

Lawyer’s Role in Mediation

  • Lawyers can be active in court-ordered mediations, offering opening statements and advice.
  • The mediator controls the process and uses lawyers to facilitate solutions.
  • Rules are determined by the mediator.

Advantages and Disadvantages of ADR and Court Proceedings

A comparative analysis of advantages, disadvantages, processes and overall value of ADR and traditional legal court preceedings.

Court Proceedings:

  • Requires traditional legal representation
    Courts consider legal issues.
  • Follows rigid formal rules.
    Public.

Adversarial Lawyers

The big party with lots of money can afford the 50+\text{ lawyers}, but don't think that doesn't happen mediation

When is Mediation most useful?

  • Dispute is private, confidential issues where it's good to be a confidential issue.
  • Where there are interpersonal problems so that communication thing where we're not just two arm's length people, commercial people, then we might maybe go into court.
  • Maybe that is a solution in some instances.
  • They want some sort of remedy that you can't get in court.

Not useful?

  • History of violence may depend.
  • Someone's not going to comply with the rules, the mediator sets the ground rules, they don't comply with them, then it's not going to get anywhere.

Lawyer's Role in Resolving Disputes

  • Most legal work involves mediating, negotiating, and resolving disputes.
  • Lawyers must act in their client's best interests by encouraging settlement.
  • They inform clients of legal options and potential outcomes.
  • They may act for clients in ADR but it is not always necessary.