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  • Print publication year: 2018
  • Online publication date: April 2019

6 - Civil Dispute Resolution and Excessive Adversarialism

Summary

Introduction

As we saw in the previous chapter, the different roles of criminal defence and prosecution lawyers are clearly delineated by the very nature of a criminal trial as a public forum for determining guilt and innocence and upholding the Rule of Law. In civil litigation, however, the nature of the process and the roles and responsibilities of the lawyers are more ambiguous. Lawyers play a number of roles in civil matters which can range from aggressive advocacy in fully litigated civil trials to deal-maker and representative in negotiating the legal structure of multi-party collaborative commercial projects. Lawyers may act on behalf of clients in formal mediation or informal negotiations to settle civil matters. They may also provide advice, guidance and practical help in pro-actively managing and structuring commercial, domestic or governmental transactions and affairs to avoid disputes.

There is a public interest in maintaining the fairness and justice of the court system and the legal decisions emanating from that system. Lawyers therefore have an overriding duty to the administration of justice. In recent times it is also increasingly recognised that there is a public interest in the encouragement of efficient and efficacious dispute resolution without recourse to court where possible. Therefore, even in private negotiations and alternative dispute resolution, lawyers have a duty to the administration of justice, grounded in responsible lawyering.

Lawyers are also, however, representatives of their clients who have a private interest in having disputes concluded in certain ways. When a person needs to use a lawyer, they are often in the midst of conflict and not always at their most altruistic or rational. The work that clients ask their lawyers to do may be aimed at cutting across the interests and positions of other people. People need lawyers precisely because of the conflicts we face as we live together in society. Surveys show that people tend to be critical of lawyers in general but very favourable towards their own lawyer: they condemn lawyers for doing for others what they praise them for doing for themselves – being adversarial advocates.

Appleby, Gabrielle, ‘The Government as Litigant’ (2014) 37 University of New South Wales Law Journal 94.
Cameron, Camille, ‘Hired Guns and Smoking Guns: McCabe v British American Tobacco Australia Ltd’ (2002) 25 University of New South Wales Law Journal 768.
Dare, Tim, ‘Mere-Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers’ (2004) 7 Legal Ethics 24.
Foley, Tony, ‘Institutional Responses to Child Sexual Abuse: How a Moral Conversation with its Lawyers Might Contribute to Cultural Change in a Faith-based Institution’ (2015) 18 Legal Ethics 164.
King, Michael, Freiberg, Arie, Batagol, Becky and Hyams, Ross, Non-Adversarial Justice (Federation Press, 2014).
Menkel-Meadow, Carrie, ‘The Limits of Adversarial Ethics’ in Rhode, Deborah L (ed), Ethics in Practice: Lawyers’ Roles, Responsibilities, and Regulation (Oxford University Press, 2000).
Ojelabi, Lola Akin and Noone, Mary Anne (eds), Ethics in Alternative Dispute Resolution (The Federation Press, 2017); also published as Law in Context Special Issue 35(1).
Simon, William H, ‘The Ideology of Advocacy: Procedural Justice and Professional Ethics’ (1978) Wisconsin Law Review 30.
Wolski, Bobette, ‘The Truth About Honesty and Candour in Mediation: What the Tribunal Left Unsaid in Mullins’ Case’ (2012) 36 Melbourne University Law Review 706.