Gething, Michael --- "The future of advocacy?" [2015] PrecedentAULA 1; (2015) 126 Precedent 2

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THE FUTURE OF ADVOCACY?

By Michael Gething

From time to time I fear that advocacy, at least in the civil jurisdiction, may be a dying craft. For example, the Supreme Court of Western Australia conducted only 56 civil trials last year, meaning that under 3 per cent of contested civil cases were resolved by trial. The Western Australian Bar Association’s 200 or so members, together with advocates from other jurisdictions who can practise in WA, means only limited opportunities for many lawyers to gain experience as advocates in complex civil trials. As Glyn Watson and Michal Horvath observe in their contribution to this edition: ‘Nothing develops advocacy skills other than being an advocate.’

In common with all Australian superior courts, the vast majority of contested civil cases in the WA Supreme Court are resolved by agreement, many through formal mediation. In 2014, the WA Supreme Court conducted 574 mediation conferences, with many more cases being resolved through private mediations. It may be that the future of advocacy lies more in assisting clients to settle in mediation than assisting them to win at trial.

Much of the advice given to curial advocates is equally applicable to advocates in the mediation context, in particular the recurring theme throughout the articles in this edition of the importance of early, detailed and meticulous preparation.

The distinction between curial advocacy and mediation advocacy may well become more pronounced as mediation practices develop. An opening submission is a powerful tool of persuasion in the hands of a well-prepared curial advocate. Precisely for this reason, as a mediator, I am reluctant to allow the parties to make opening submissions at the beginning of a mediation. My objective as the mediator is to facilitate the parties in moving away from their opening positions, inevitably more than they really want to. It seems counterproductive to this objective to start the process by giving each party the opportunity to further entrench themselves in their opening positions by allowing their advocates to persuade each of them that their respective opening positions are defensible, justified and inevitable. In my experience, a far more productive way to commence the mediation is to identify areas of common ground. This reinforces the message that the purpose of a mediation is to seek to narrow, and ultimately resolve, the dispute, on mutually acceptable terms.

As Gerard Forde emphasises in his contribution, mediation is the only opportunity the advocate will have to talk directly to the opposing party in an attempt to persuade that party to change their position. Of the many tools of persuasion available, a full-frontal assault is one of the least effective. The opposing party’s lawyers would have primed their client to expect you to say ‘x’, ‘y’ and ‘z’ about their claim, and why these points are without merit. So when you eloquently confirm these expectations, your points will be mentally discarded by the opposing client.

One particularly effective, but rarely used, technique is to start by asking questions. The frame could be something like: “I have given my client certain advice about what might be an appropriate basis on which to settle this case, but before I can finalise this advice so that my client can make an offer, I need to know some more information.” The advocate can then proceed to ask the opposing client, or their lawyer, a series of well thought-out questions, typically about the factual issues critical to the outcome at any trial. The questions should be open questions, and not closed cross examination-style questions. Done well, this approach will have one of three productive outcomes. The first is that you will surgically dismantle the foundation of your opponent’s opening position, and have done so in a manner likely to engage that opposing client. The second is that you will have discovered factual information about your opponent’s case, which may cause you to question the strength of your own opening position. The third is a combination of the first two, which in the hands of an experienced mediator should develop into a productive discussion as to how best to resolve the dispute.

I commend this edition to you.

Michael Gething is the Principal Registrar of the Supreme Court of Western Australia, and in that capacity routinely presides over mediation conferences in matters including complex commercial disputes, personal injury cases and inheritance claims. Email: [e-mail].