ALTERNATIVE DISPUTE RESOLUTION IN 2024 AND BEYOND

ALTERNATIVE DISPUTE RESOLUTION IN 2024 AND BEYOND - SURVEYING THE PROFESSION

Mediation and other forms of alternative dispute resolution (“ADR”) are an integral part of our legal system and their use continues to rise in NSW. In light of this growth, the Law Society of New South Wales, in conjunction with its ADR Committee, want to hear from the profession in NSW so that we can better understand their current use of ADR and their needs in 2024 and beyond.

The survey has been designed to gather information from lawyers on their choice of ADR, including client input, the use of ADR clauses, barriers to the use of ADR and the needs of the profession in relation to knowledge and skills to represent clients in ADR processes.

We are also currently conducting a study on the feasibility of compulsory pre-filing mediation for civil matters in NSW. On completion of this survey, there will be an opportunity for interested practitioners to provide input on this topic.

The jurisdiction under the Family Law Act 1975 (Cth) is highly regulated with respect to mediation (FDR in parenting cases and pre-action and Court based mediation in financial cases) in comparison to other areas of civil law. Consequently, there are a high volume of ADR events already occurring pursuant to the Family Law Act. Family law has therefore been excluded to prevent it from potentially dominating the responses and making the data harder to interpret.

The survey should take less than 10 minutes to complete. All entries will be put in a draw to win one of 5 x $200.00 gift cards.

Your responses are anonymous. The data gathered will be used for research purposes and the research may be published.

PRELIMINARY QUESTIONS

1. What was your year of admission?

2. Where do you predominantly practise?

Sydney CBDSydney suburbsRegional

3. What type of practice are you currently employed in?

PrivateGovernmentIn-HouseOther (please specify)

5. Roughly what percentage of your work as a lawyer is:

a) Please specify transactional percentage, e.g. 60%

b) Please specify litigation percentage, e.g. 40%

6. In addition to being a lawyer with a current practising certificate, do you offer services as an ADR practitioner? If yes, please tick all the services that you provide:

7. What is your assessment of your level of knowledge and skills in representing clients in the above ADR processes? Please tick:

HighAverageBelow averageLow

OBJECTIVE 1

To explore lawyers’ views and experiences about client and lawyer input into the choice of alternative dispute resolution process.

2. Roughly what percentage of your representation of clients at mediation is:

a) At a facilitative mediation, e.g. 60%

b) At an evaluative mediation, e.g. 40%

OBJECTIVE 2

To capture and analyse the individual differences between lawyers in their use of various alternative dispute resolution processes.

1. At what point in the dispute is an ADR process actively considered?

2. Which of the following ADR process(es) do you prefer?

Please rank in order of preference from 1 to 7, and choose “not applicable” as appropriate:

3. Do you include clauses in your contracts or agreements obligating the parties to negotiate, mediate, or use ADR before commencing litigation or arbitration?

YesNo

If yes, how often are those clauses cooperatively complied with, disputed or disputed and enforced?

4. Is access to ADR services a barrier for your clients?

YesNo

5. If yes, how may the Law Society of NSW be able to assist?

6. What, if anything, in terms of process change and/or training, do you think would assist you and your clients to use ADR processes more often and/or more effectively?

PRIZE DRAW

Would you like to enter the prize draw?

YesNo

Title

First Name

Last Name

Email Address

Phone Number

By ticking this box, you choose to enter the prize draw and agree to the Terms and Conditions. We will collect your name and contact details so we can contact the winners. Please read The Law Society of New South Wales Personal Information Collection Notice. *

The Law Society's Alternative Dispute Resolution Committee is currently undertaking a study on the viability of compulsory pre-filing mediation in NSW for civil matters. If you are interested in providing feedback on this particular topic, please tick this box.

ALTERNATIVE DISPUTE RESOLUTION IN 2024 AND BEYOND - SURVEYING THE PROFESSION (PART 2)

Measure the views of lawyers about the use of mandatory pre-filing mediation or other ADR processes in various jurisdictions.

1. Should parties be required, under applicable Court or Tribunal legislation, regulation or practice direction, to attempt to resolve their disputes before filing Court or Tribunal proceedings?

2. If you believe parties should not be required to attempt resolution of their matters prior to commencing proceedings (or not always be required), what is the basis for your opinion? Please select all that apply:

Some matters are not suitable for pre-filing ADRPre-filing ADR can increase the cost of the proceedingsEngaging in pre-filing ADR makes parties less likely to engage in ADR after commencementOther (please specify)

5. Which of the following matters, if any, should be exempted from a mandatory pre-filing ADR protocol?

There should be no exceptions to the mandatory ADR pre-filing requirement Actions for a civil penaltyEx parte applicationsUrgent interlocutory applicationsOther (please specify)

6. Which of the following courts and tribunals would be suitable for compulsory pre-filing mediation (with appropriate exemptions).

Please rank in order of suitability, from 1 (most suitable) to 10 (least suitable):

Thank you for taking the time to participate in our survey.

Your feedback is incredibly valuable and will help us improve. We appreciate your input and contribution to our efforts.

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