Just back from the Dispute Resolution Board Federation Advanced Workshop in Brisbane which was held this past weekend.
Brilliant. A really good day, with absolutely practical guidance from people who know exactly what they are doing.
For someone like me, who has gone to the bar rather late in life, Dispute Review Boards (or Dispute Avoidance Boards as they are often called here in Australia) are a breath of fresh air. The bar makes most of its income from trials, and so it is perhaps inevitable that the focus tends to be on court process in general and trials in particular. And court hearings are often great fun for advocates. I did a criminal case the other day. Someone for whom I had successfully run a building issue trial had had a run-in with a guy (who turned out to be a policeman) on the highway, and asked that I defend him in court after the policeman had charged him with tailgating. I explained that I am not a criminal lawyer, but he insisted. Happily for my client, I was able by cross-examination to persuade the court that the policeman’s evidence was not sufficiently credible, and I got the acquittal. I think I will stop my criminal practice right here, so that I can retain my 100% acquittal record!
More seriously, however, trials of complex construction disputes are a hopelessly inefficient way of dealing with dispute, and having spend many years getting disputes resolved without trials, it is hard to go backwards. As the senior partner of law firms in the UK and Australia, one of the most satisfying things I did was to help clients resolve disputes where the firm had a conflict of interest because both disputants were already clients of the firm. My partners used to say,
“Conflict of interest prevents us from acting in this case. But if you both want to come in at the same time and talk about the dispute with Robert, he will see if he can make a suggestion to you both as to how you might resolve the issue.”
The clients usually accepted the invitation, and it turned out that when they came along, the process had a genuine 100% success rate, and clients said several times, “Why can’t we do this all the time?” There are all sorts of answers to that, but it interesting to note that DABs also have a more or less perfect record here in Australia (about 98% or so in the USA), not only in preventing conflicts turn into fully-fledged disputes, but also in making sensible suggestions that the parties are prepared to accept as to how disputes should be resolved.
There is a cab rank rule at the bar, whereby we are not supposed to turn cases away without good reason. I will be very happy over the next few years if I am regularly able to say, “No, I cannot do your criminal trial because I too busy serving on Dispute Avoidance Boards”.