![handle is hein.journals/lethics14 and id is 1 raw text is: 111
Editorial
Hilary Sommerlad and Christine Parker
The papers in this issue of Legal Ethics provide a rich variety of insights into professional
ethics, and in different ways all illuminate the contradictions at the heart of the project to
'ethicise' legal practice, and situate these in the wider transformations of civil society.
Judy Gutman's paper considers the rise of alternative dispute resolution (ADR) in
Australia in the non-criminal law context, and the ethical challenges it provokes. She
discusses how costs, stress, delays and unsatisfactory outcomes have led to growing dissatis-
faction with traditional adversarial dispute mechanisms. She notes that the evidence which
indicates that adversarialism negatively impacts the social well-being and mental health of
legal practitioners suggests that ADR may lead to a happier and healthier legal profession,
and argues that this in turn necessarily benefits the administration of justice. In her
reflections on this argument, she discusses a range of commentators, including Julie
Macfarlane's suggestion that ADR will produce a new ethical mindset and David Luban's
notion that lawyers should engage in 'moral activism', taking responsibility for the effects of
their actions, and hence their moral place within the justice system.
Gutman also explores the ethical concerns posed by the pressure to settle disputes
through ADR processes, noting their disjunct with official rules of professional conduct
which cater, in the main, for determinative processes. Citing Owen Fiss's comparison of
ADR with plea bargaining, she comments on the breach of basic fiduciary duties which may
stem from being legislatively mandated to use litigation only as a measure of last resort, and
argues further that the 'coercive practices' that this entails may result in 'legal practitioners
not adhering to their duty to act in their clients' best interests [which] impede[s] the
administration of justice'. She then illustrates this argument through a focus on the ethical
conundrums associated with legal practice in the family law area, where ADR is the primary
dispute resolution mechanism and where collaborative law practice is widespread. Here she
summarises the well-rehearsed problems with ADR-such as the fact that it is not open to
review, is private and confidential, and a fluid and flexible process with no clear rules and no
doctrine of precedent. Her conclusion is that the disconnect between ADR processes and
procedural justice produces an 'uncomfortable juxtaposition with the separation of powers
guaranteed by the Australian Constitution', and in support she quotes Chief Justice
Spigelman's comment that 'the enforcement of legal rights and obligations is a core function
of government'.
Of course the problems engendered by the expansion of civil litigation and the use of
ADR are faced by many jurisdictions; the Civil Procedure Act 2010 (Vic), which, as Gutman
tells us, mandates all stakeholders, including lawyers and their clients, to pursue the Act's](ViewImageLocal?handle=hein.journals/lethics14&div=1&collection=&method=preview&ext=.png&size=3)
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