Welcome, new neighbour
From the sounds of my ceiling,
You are dinosaur.
Dinosaur Neighbor Haiku, Reddit, <https://www.reddit.com/r/pics/comments/pmdtu/dinosaur_neighbor_haiku/>.
I enjoyed the Harvard exercise. Seeing how, both in my group’s scenario and in the other’s, certain types of issues consistently lending themselves to particular fora was a valuable insight. The tension for me however was between the commercial imperative of the firm to make money and what might best suit the client’s interests. This comes out of my undergraduate training in business and my experience working in the private sector, but in legal practice, there is a duty to the client that supersedes this. Perhaps the resolution of this tension is that there is a conflict building a reputation for client-focused outcomes enhances business for the firm. Maybe this is simply too focused on money and commercial arrangements.
In our group’s scenario I jumped to the assumption that the property disputes would be the most fractious, which has been my experience hearing about them from friends and colleagues but completely missed the fact that neighbours have an on-going relationship so it is in their interests to at least try to work things out. In practice, I should not make assumptions about the nature of clients’ relationships with other parties as I might miss opportunities for more amicable resolutions and not get the best outcome for my client.
In my limited legal experience in employment law, I have noticed that advising clients about whether they should litigate in the Magistrates’ Court or pursue a med-arb process in the Fair Work Commission (FWC)/WAIRC usually centres the discussion around where they are most likely to win (i.e. a win/lose situation) and the costs of each venue. These are important but in discovering their ideal outcome part of my reflective practice should be to add in consideration of what forum best meets what they want to achieve. The question arises as to whether I will ever see those relationship instinctually? Maybe all I can do is train myself over time to do it – or have someone with me who is better at than me. Perhaps I am better suited to another area of practice? My strengths tend to be more related to factual analysis so perhaps the take-home message is to look for area that plays to those strengths such as banking and finance.
This fits with Sander and Goldberg’s view that “run-of-the-mill tort claims” (and by inference contractual claims) are better handled through arbitration rather than a trial. Hamilton also recommends mediation in employment matters. In the employment law context, the system aims to preserve the relationship, so mediation would often be the better method if it is possible to repair the relationship. Often what comes through is that the employee felt that their skills contribution was not recognised. Knowing that I need to interrogate my assumptions, drill down and get to what is fundamental driving a client and knowing that that will shape what method of dispute resolution I recommend is definitely something I took away from the exercise.
Sander F & Goldberg S, In Practice Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure, Negotiation Journal January 1994, p49.
Hamilton, R 2009, Selecting an ADR Forum, Corporate Business Council Journal, <https://ccbjournal.com/articles/selecting-adr-forum>.
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