DR Praxis

DR Praxis[1]

The new work Australian Dispute Resolution Law and Practice (LexisNexis, 2017) articulates how there is a deep diversity in Australian DR practice which is grounded in a rich history (see Chapter 3). The early enthusiasm for ‘ADR’ was at times unbounded and uncritical, but the practice of DR in Australia is now well established and its roots are strong because they have been informed by developing critiques of DR processes across the matrix and by assessments of the potential of DR, including empirical studies and evaluations.

Nevertheless, there has, at times, been a certain level of disconnect between DR theory and DR practice. In order for DR to fulfil a new central role in legal professional practice in the future, a purposeful and rigorous approach is necessary to ensure that DR theory informs its practice and that practice developments inform DR theory. This is the DR praxis project; a project that is deserving of far more rigorous attention in the DR community. In the book, we flag the importance of the issue, highlight some key elements of DR praxis, and suggest some ways in which the praxis of DR can be sustained and supported into the future. There will always be a need to continue empirically researching and evaluating and theorising about DR systems. It is also important to draw from the existing body of theoretical, scholarly DR knowledge to inform the praxis project.

Praxis and DR advocacy[2]: Australian Dispute Resolution Law and Practice is about contemporary lawyering and legal practice in Australia, and how traditional approaches to the delivery of legal services and to ways of being a lawyer need to be reconceptualised. Lawyers must now be more than one dimensional adversarial fighters for rights and entitlements. For a sustainable future for the legal profession, lawyers must be multi-dimensional, multi-skilled, adaptable and agile practitioners in the context of the processes across the DR matrix.

How lawyers advocate in DR contexts, and what a legal DR advocate looks like (or should look like) is arguably one of the most important areas where a cultural shift is necessary for DR and legal praxis to move forward. It is critical that this shift is informed by the values and goals of DR and its theory (see Chapter 4). Both adversarial and non-adversarial advocacy knowledge, skills and attitudes are necessary for the provision of legal services to fulfil the DR values of justice, party autonomy and community. In Macfarlane’s words, lawyers must be able to ‘wear two hats’.[3]

Challenge: Some legal practitioners are resistant to accepting non-adversarial forms of advocacy as true advocacy – because legal advocacy has for so long been associated with adversarial approaches and court action. How can we promote non-adversarial forms of advocacy as having efficacy given the historical legal approach to advocacy?

[1] See for example, Richard J Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis (University of Pennsylvania Press, 2011); Eric K Yamamoto, ‘Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America’ (1997) 95 Michigan Law Review 821.

[2] On this issue see for example, Julie Macfarlane, The New Lawyer (UBC Press, 2008). This section of the Chapter particularly draws from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014), ch 13. Other important contributions to the literature on legal advocacy in DR contexts include: Donna Cooper and Mieke Brandon, ‘Non-Adversarial Advocates and Gatekeepers: Lawyers, FDR Practitioners, and Cooperative Post-Separation Parenting’ (2008) 19(2) Australasian Dispute Resolution Journal 104; Donna Cooper, ‘Assisting Future Lawyers to Conceptualise their Dispute Resolution Advocacy Role’ (2013) 24(4) Australasian Dispute Resolution Journal 242; Donna Cooper, ‘The ‘New Advocacy’ and the Emergence of Lawyer Representatives in ADR’ (2013) 24 Australasian Dispute Resolution Journal 178;Donna Cooper, ‘Representing Clients from Courtroom to Mediation Settings: Switching Hats Between Adversarial Advocacy and Dispute Resolution Advocacy’ (2014) 25(3) Australasian Journal of Dispute Resolution 150; Donna Cooper, ‘Lawyers Behaving Badly in Mediations: Lessons for Legal Educators’ (2014) 25(4) Australasian Dispute Resolution Journal 204. See also, Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2008) 8(1) QUT Law and Justice Journal 77; Olivia Rundle, ‘Lawyers’ Perspectives on ‘What is Court-Connected Mediation for?’ (2013) 20(1) International Journal of the Legal Profession 33; Olivia Rundle, ‘Lawyers’ Participation in Mediation and Professional Ethical Disposition’ (2015) 18(1) Legal Ethics 46; Olivia Rundle, ‘Lawyers’ Preparation for Court-Connected Mediation: The Supreme Court of Tasmania’ (2013) 32 University of Tasmania Law Review 20; Bobette Wolski, ‘On Mediation, Legal Representatives and Advocates’ (2015) 38 UNSW Law Journal 5; Paula Baron, Lillian Corbin and Judy Gutman, ‘Throwing Babies out with the Bathwater – Adversarialism ADR and the Way Forward’ (2014) 40 Monash University Law Review 283; Mary Anne Noone and Lola Akin Ojelabi, ‘Ethical Challenges for Mediators around the Globe: An Australian Perspective’ (2014) 45 Washington University Journal of Law and Policy145.

[3] Julie Macfarlane, above n 2, 98, 117.