- Title
- Lawyer approaches to court-connected mediation: a new case study
- Creator
- Woodward, John
- Relation
- University of Newcastle Research Higher Degree Thesis
- Resource Type
- thesis
- Date
- 2019
- Description
- Research Doctorate - Doctor of Philosophy (PhD)
- Description
- This thesis examines the attitudes and behaviours of lawyers in response to court-connected mediation. Lawyers, as the first point of contact for legal services consumers finding themselves in conflict, are said to operate as "gate-keepers" or decision makers in determining the most appropriate response to their clients' needs. Failure to recognize the benefits of mediation can result in lost opportunities for more sensible, more durable and less expensive dispute resolution options. This qualitative study found that, whilst lawyers are generally amenable to mediation, their use of it is circumscribed by a poor understanding of the processes and entrenched legal professional culture. Despite the development of court-connected mediation in NSW over the part thirty years, there remains a reluctance on the part of lawyers to embrace it fully as a viable dispute resolution option. This reluctance, grounded in a cultural and educational context of adversarial legalism, results in resort to competitive and positional bargaining behaviours which are more in keeping with the process driven framework of the traditional justice system. Lawyers were reluctant to encourage or even permit disputant participation in the mediation narrative and there is uncertainty around the limits of mediation confidentiality. There was also a reluctance by lawyers to permit non-legal material to be introduced to the mediation narrative which in turn limits the opportunities of the disputants to understand other parties' interests, acknowledge their own contribution to the dispute and to reach consensus about positive solutions. The thesis also considers the legal education framework in the context of better understanding how lawyers' views about mediation are shaped and formed. It concludes that the 2016 reforms to the Civil Procedure element of the core subjects for study by law students are inadequate to prepare lawyers for practice in the twenty first century and that a disproportionate level of attention is still being directed to the role of adjudicatory determination of disputes. The thesis recommends further research into the role of the courts in referring cases to mediation and clarification of the laws relating to confidentiality and admissibility in respect of court-connected mediation.
- Subject
- mediation; lawyers; court-connected; ADR; legal culture; legal education; access to justice
- Identifier
- http://hdl.handle.net/1959.13/1398003
- Identifier
- uon:34380
- Rights
- Copyright 2019 John Woodward
- Language
- eng
- Full Text
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| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | ATTACHMENT01 | Thesis | 7 MB | Adobe Acrobat PDF | View Details Download | ||
| View Details Download | ATTACHMENT02 | Abstract | 103 KB | Adobe Acrobat PDF | View Details Download |