: Making litigants more agreeable?

Making litigants more agreeable?

Tania Sourdin

The new Commonwealth Civil Dispute Resolution Act (2011) came into effect on 1 August 2011 and is designed to foster earlier dispute resolution in disputes that might otherwise be commenced in the Federal Court or the Federal Magistrates Court. The legislation requires would be litigants to file a ‘genuine steps statement’ setting out what attempts have been made to resolve the dispute before commencing legal proceedings. Courts can consider whether or not a litigant has taken genuine steps and can make additional orders and exercise discretion in relation to costs.

The legislation creates new obligations for lawyers to explain dispute resolution options and to assist parties to comply with the Act. Whilst the obligations do not require potential litigants to use Alternative Dispute Resolution (‘ADR’) before commencing proceedings they do create additional requirements and certainly encourage ADR and structured negotiation use. The legislation is also linked to an expanded requirement for people to use dispute resolution processes before commencing litigation in a range of areas and changes in judicial understanding of ADR processes.

The legislation reflects a growing trend to require would-be litigants and their lawyers to behave in a reasonable, even non adversarial manner, to attempt to resolve disputes and engage in behaviour that supports earlier and more effective dispute resolution. By not prescribing a mandatory ‘one size fits all’ ADR requirement, it is hoped that the legislation will foster flexible processes at a reasonable and proportionate cost.

Is it unreasonable or inappropriate to expect would be litigants and their lawyers to behave in a reasonable manner and attempt to resolve their differences before commencing court proceedings? Some have suggested that it is, whilst others suggest that the creation of statutory obligations in this area reflect changing social expectations and approaches to dispute resolution — where litigation and the Courts play an important, but as a last, rather than a first resort.

TANIA SOURDIN is the Foundation Chair and Director of the Australian Centre for Court and Justice System Innovation (‘ACCJSI’) at Monash University.

(2011) 36(3) AltLJ 203
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