A jihad on adversarialism

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

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

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

[image: image]This inclusion suggested either that the book is not sellingas well as hoped or that the organisers knew that once the conference hadfinished none of the attendees would ever want to hear the words“non-adversarial justice” ever again, so decided to force the tome upon theonly available market.

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

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

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

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

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

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

This misguided delegate had thought that non-adversarial procedures weredesigned 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 moretime and put more resources into things like judicial education, judicialfunding and, most of all, judicial power.

Magistrate Frances Zemljak is unhappy that he is only given one hour permediation conference. There were difficulties in preparing a genogram forevery 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 oflitigants to express their emotions in proceedings and feel better for itafterwards.

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

[image: image]There were plenty of proselytisers from Americans on hand.

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

Her unscripted highly charged address at the plenary session on the secondmorning seemed to be saying that King Solomon (seen here) was the ultimatenon-adversarialist and the traditional legal system had been falling apartever since.

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

But ever since she has been fighting judges, fellow practitioners, justicedepartments, law schools and academics in an attempt to combatadversarialism.

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

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

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

[image: image]The 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, shakingwith the fervor from the love flowing down.

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

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

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

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

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

[image: image]Proudly they declaimed the anger of counsel when theymercilessly imposed a “hot-tub” on the parties.

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

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

Then at question time the stellar performer was Tasmania’s Commissioner forChildren, Paul Mason, the man who suggested that the entire population ofwomen of child bearing age ought not to drink alcohol as the means to combatfoetal alcohol syndrome – begging the question of how he thought most womengot 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 becausewe are not sufficiently in touch with our non-adversarial sides.

On the other hand lawyers themselves are the problem and this can only beresolved by judges imposing themselves into all parts of proceedings andmaking 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 againstadversarialism.

*Portia*