Why does it always take so long to get anywhere in court proceedings? It almost seems as if the courts don’t ever want you to get to a trial.

If that’s the impression you are getting with your legal matter, you aren’t alone!

If you think about it, a process that actively discourages people from spending days and days in court is likely to be more rational, and make at least commercial sense.

The courts mainly try to achieve this rational objective by a process known as “alternative dispute resolution” (ADR). This is a generic term referring to those mechanisms designed to help disputing parties achieve a conciliated and mutually acceptable outcome as an alternative to the “winner-takes-all” approach which trial courts deliver. Examples include arbitration, mediation, conciliation and informal conferences. The basic difference lies in the powers and functions of those who preside over each form of conference (arbitrators, mediators, conciliators, or, in the case of an informal conference, no one at all) and whether or not they can determine those issues that can’t be resolved by agreement. But the basic premise of all forms of ADR is the same: to help disputing parties settle their differences rather than fight to the death at a trial.

In a way, to call this approach to dispute resolution “alternative” is a misnomer, as the Chief Justice of Western Australia, The Honourable Wayne Martin QC, pointed out in a recent speech at the Australian Lawyers Alliance WA State Conference. According to His Honour, more than 97% of disputed matters which start out in court are resolved - usually by agreement between the parties - making ADR by far the most common way to resolve legal disputes.

You might think that one party or the other at these ADR conferences probably capitulates under the pressure of financial and emotional exhaustion that the delays and processes of the justice system will inevitably place on both the parties. You might think the winners are those with the deepest pockets and the steel nerves. Most courts in Australia now recognise this, though, and encourage people to “mediate early and mediate often”. This approach is intended to help the parties overcome the twin evils that investing too much time, money and emotion, with no appreciable result, can create: namely, exhaustion and entrenchment.

Litigation can be exhausting. It can demand a greater financial and emotional investment in the chance of a favourable judicial outcome than people are prepared to make. To illustrate just how enormously expensive and time consuming it can be, just remember that to have a trial:

(a) you could have to pay for a barrister, an instructing solicitor, secretarial, research and clerical support staff, process servers to subpoena witnesses, witness attendance fees, document filing fees to court, court fees for use of the courtroom, photocopying, faxing and courier delivery fees, over several weeks of trial preparation; and

(b) the taxpaying public has to pay for the use of a courtroom with recording equipment/audiovisual facilities etc, a Judicial officer, their associate/support officer, a court orderly, court registry clerks, transcription clerks, and sometimes also a custody officer- not to mention a Jury officer and 12 jurors who have to take time off work in some serious criminal matters..

The degree of emotional and financial investment that litigation can demand causes some people to become so entrenched in their own position that they stubbornly refuse even to consider the possibility that they may be unsuccessful at trial. They won’t even consider that it may be in their commercial best interests to cut their losses and perhaps forego the prospect of some further, but uncertain, commercial gain.

That’s why it’s generally best for parties to begin structured and professionally mediated settlement negotiations early on in the process: that’s when the parties are most likely to prefer certainty and closure to victory and vindication.

So if you’re about to become involved in court proceedings or you’re a new litigant with a fresh court action, don’t get frustrated if a Judge or Registrar won’t let you progress your matter without attending ADR. Like more than 97% of litigants just like you, you may find yourself getting the best out of ADR than any litigant can ever hope for: a tangible, certain and final outcome that you can live with.

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