Alternative Dispute Resolution Experience and Philosophy
Most of my legal career has involved litigation. Back in 1986, while I was working for the GIO, even though I was resonsible for more than 1,000 personal injury files, there was no provision for formal Alternative Dispute Resolution processes. The legal counsel involved in the case would, from time to time, discus a matter and would try to settle the case between themselves - often while actually at the courthouse with the barristers conducting the negotiations. Over the next 30 years, I have seen this haphazard approach to resolving disputes changed greatly for the better. For example, the majority of U.S. States' courts now require mandatory good faith attempts to resolve pending law suits through mediation or another form of ADR before the matter can proceed to trial.
From 1992 to the end of 1999 I conducted my own litigation focused practice in Minnesota. During that time, I saw the progressive introduction of mandatory ADR and began to see the clear benefits of participating in mediation sesions with trained mediators. Frequently, I saw a slow and expensive slide through the formal litigation process as being the result of the failures of the parties involved in a dispute to effectively communicate with each other. Even while I was with the GIO, the vast majority of cases settled without the need for a trial, but typically they settled only after years of expense, delay and angst had passed. The difference that mandatory ADR made was undeniable.
Okat Harbour at Sunset. Kosrae FSM.
From January, 2000 to the end of 2005, I was employed by Northland Insurance in Minnesota and averaged between 25 and 30 interstate trips a year to attend mediations or arbitrations. Often these trips would involve 2 or 3 mediations or hearings. I went to more than 20 states and had the opportunity to work with a large number of different mediators and arbitrators, from backgrounds that ranged from former appellate court judges to non-legally trained mediators. Over and over again, I experienced the practical benefits of the ADR process and saw the benefit of working with a mediator who focused on enhancing effective communication between the parties.
After moving back to Australia, and in order to meet the formal requirements for accreditation as a mediator, I undertook training through the Australian Commercial Dispute Centre in Sydney. This training focused on a model of "Facilitative Mediation" which emphasizes the enhancement of effective communication of the parties to a dispute's needs and interests instead of their positions and ambitions. This method of ADR has proven to be extremely effective in a very wide range of different types of dispute and I am now a nationally accredited mediator.
I have conducted more
than one hundred and fifty mediations and arbitrations in the
past 5 years, ranging from simple disputes between neighbours,
to significant commercial litigation. The great thing about
mediations is that, in my experience, nearly 90% of all
matters that go to mediation result in a resolution that the
parties involved have themselves
There is no "one size fits all" form of ADR. The mediator must have the experience, the skill set and the willingness to change strategies during the course of the mediation so that the needs of the parties are being met and so that the communication between the parties is effective and leading to a resolution of their dispute.
© John McKenzie 2015