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City Desk
21 May, 2010  
A jihad on adversarialism

Portia attended the big chinwag in Melbourne on mediation and non-adversarial justice … She was singularly unimpressed … It put her in mind of a Billy Graham evangelical meeting … What’s happened to the old love for the godless adversarial joust?


The AIJA (the Association for Sucking-up to Judges) and Monash University presented a conference in Melbourne earlier this month on “Non-Adversarial Justice”.

Delegates were touched to find among their conference show-bag goodies a free copy of the recently published book Non-Adversarial Justice by King, Freiberg, Batagol and Hyams (rrp $59.95).

imageThis inclusion suggested either that the book is not selling as well as hoped or that the organisers knew that once the conference had finished none of the attendees would ever want to hear the words “non-adversarial justice” ever again, so decided to force the tome upon the only available market.

Attorney General Rob Hulls (pic) opened the show with some fairly predictable sentiments that one expects of a politician. He challenged the “movement” to find a way to define itself in a positive sense rather than by reference to what it is not!

Speaker after speaker droned their way through attempts to define themselves with reference to their struggles against court systems, law schools, parliaments, the funding bodies and all those dreadful institutions that are resisting the tide of this “vibe”.

The academic speakers, in particular, have a fondness for power-point presentations, speaking to the screen behind them rather than to the audience.

Many speakers dwelt upon slide #1 (the one with their name and the name of their sponsors) for 25 minutes of a 30 minute presentation, then got flustered and tried to bolt through the remaining 38 screen messages in the remaining moments.

The academics also deluded themselves that the audience was keen to rush out and read the corresponding paper afterwards.

Surely, a good speaker knows that an audience is only thinking about emptying their bladders and eating morning tea.

This misguided delegate had thought that non-adversarial procedures were designed to save time and reduce costs in the legal system.

Silly me.

No – if we are going to do this non-adversarial caper then we must take more time and put more resources into things like judicial education, judicial funding and, most of all, judicial power.

Magistrate Frances Zemljak is unhappy that he is only given one hour per mediation conference. There were difficulties in preparing a genogram for every conference in the limited time available.

He is struggling with court administration to only have two cases a day.

Professor Tania Sourdin enlightened us to the ills of legal advice, pleadings and an insistence on cogent evidence all limiting the ability of litigants to express their emotions in proceedings and feel better for it afterwards.

Attempts to narrow the focus of hearings deprive litigants of the opportunity to air all their grievances at taxpayer’s expense.

imageThere were plenty of proselytisers from Americans on hand.

Professor Carrie Menkel-Meadow (USA) has been fighting for years in the name of non-adversarialism.

Her unscripted highly charged address at the plenary session on the second morning seemed to be saying that King Solomon (seen here) was the ultimate non-adversarialist and the traditional legal system had been falling apart ever since.

Still, she had also participated in many very important and highly successful adversarial trials in her early years.

But ever since she has been fighting judges, fellow practitioners, justice departments, law schools and academics in an attempt to combat adversarialism.

People who do not subscribe to Professor Menkel-Meadows’s approach are “saboteurs”.

Some television producers met with this tag because they failed to embrace the idea of a TV drama based on the passion and excitement of mediation.

Menkel-Meadows’ dreams of exchanging Boston Legal for Mediation Central were dashed in what she described as a “cultural conspiracy”.

imageThe mention of King Solomon put me in mind of a Billy Graham (seen here) gospel-tent experience with members of the audience mumbling “Amen sister” during the homily, delegates rushing to the front, shaking with the fervor from the love flowing down.

Professor Susan Daicoff, also from the holy land, and prone to extended self-definition, spoke of the great tragedy that law students are not taught a non-adversarial curriculum.

Like her sister, Carrie, she left unaddressed the problem of how law and precedent might be developed or taught without decided cases.

She also served it up to law schools and academics who insisted on providing a hidden curriculum, where all the cases that are taught have involved naughty lawyers who failed to settle and undisciplined judges who audaciously allowed them to proceed to a trial.

Margaret Lothian, chief mediator from VCAT, introduced some refreshing common sense and good practice into an otherwise tedious affair.

However, her sensible words were overshadowed by the hairy-chested approach of Finkelstein J of the Federal Court and Fogarty J from New Zealand, who sought to outdo each other with war stories about excluding or limiting the participation of counsel in court proceedings.

imageProudly they declaimed the anger of counsel when they mercilessly imposed a “hot-tub” on the parties.

All seemed satisfied that engineers and medical experts could run the legal system better than lawyers.

(Is that because they are the only ones who still feign respect for the judges?)

Then at question time the stellar performer was Tasmania’s Commissioner for Children, Paul Mason, the man who suggested that the entire population of women of child bearing age ought not to drink alcohol as the means to combat foetal alcohol syndrome – begging the question of how he thought most women got pregnant?

He managed to drone on for a good 10 minutes without, it seemed to me, coming to a point or even a question.

Out of all this some interesting but opposing themes emerged.

Lawyers, it seems are a dissatisfied and depressed mob and this is because we are not sufficiently in touch with our non-adversarial sides.

On the other hand lawyers themselves are the problem and this can only be resolved by judges imposing themselves into all parts of proceedings and making the role of the depressed lawyers irrelevant.

Above all, the practice of non-adversarialism requires its devotees, adherents, followers and believers to be fighters in a jihad against adversarialism.

Portia