Lawyers and Dispute Resolution: What Do They Think And Know (And Think They Know)? - Finding Out Through Survey Research

Author:	Archie Zariski BA, LLB, LLM, Grad Dip Higher Ed Senior Lecturer in Law, School of Law, Murdoch University
Subjects:	Dispute resolution law (Other articles)
Issue:	Volume 4, Number 2 (June 1997)
Category:	Refereed Articles

Contents

• Introduction
• Research Design
• Research Methodology
• Questionnaire Design
• Preliminary Results
• Conclusion
• Notes
• Appendix A - Questionnaire
• Appendix B - Cover Letter
• Appendix C - Reminder Letter

Introduction

1. This article is written with a bias. The bias is to encourage and assist legal researchers interested in seeking answers to pressing questions in the field of dispute resolution through the use of empirical research methods. Such research is a very different undertaking and experience for legal academics like myself who are accustomed to bringing order to unruly judgments in the privacy of their offices. Survey research for instance is a very public and collaborative exercise calling for patience, more patience, tact and cunning. In this paper I will describe some of the methodology and informal practices which lie behind this type of research in the hope that others may gain confidence to pursue their own empirical inquiries in the field of dispute resolution.[1]

2. Before proceeding further, however, I will attempt to answer some threshold questions: Why bother? Who cares? If survey research appears alien and forbidding to legal scholars perhaps it is just best left alone? The response to these hesitations I believe lies in emphasising that a great many people do care what lawyers think about dispute resolution practices in our society and that there are some big stakes which may depend on lawyers' knowledge, attitudes and beliefs in this area. Legal academics and other observers of the legal profession therefore should not shy away from becoming involved in discovering how lawyers think concerning such issues. Important segments of the legal community and the public have a vital interest in these questions and will be thankful for some answers.

3. An indication of the wide range of parties concerned with lawyers' relation to dispute resolution can be gained from the composition of a "Joint Initiative Committee" formed in Western Australia in 1988 to explore ways and means of augmenting the civil justice system through alternative dispute resolution processes. Included on the Committee were representatives of the Institute of Arbitrators, the Institute of Chartered Accountants, the judiciary, the Citizens' Advice Bureau, the Australian Commercial Disputes Centre, and the Law Society of Western Australia.[2] Each of these bodies have reason to be interested in what lawyers think and know about dispute resolution since lawyers are in a position to stymie or support innovations in this area.

4. Firstly, leaders of legal professional organisations care about what lawyers think and know about dispute resolution. Responding to continuing criticism of the legal profession and its traditional practices, these bodies have taken seriously the allegations that inequity and inefficiency plague full-scale litigation. One initiative that legal professional associations have embraced in response to these criticisms is to encourage and sometimes require their members to become familiar with non-litigious dispute resolution methods. For example, in 1992 the American Bar Association published a major study of legal education and professional development which identified ten "fundamental lawyering skills" [3]. One of these was the skill of counselling a client about litigation and alternative processes in other dispute resolution forums together with the ability to take part effectively in a range of dispute resolution mechanisms. The attention now being paid to non-judicial dispute resolution processes has also led legal professional organisations to introduce continuing education programs concerning dispute resolution methods and skills on their own initiative and in collaboration with bodies such as LEADR (Lawyers Engaged in Alternative Dispute Resolution) in Australia and SPIDR (Society of Professionals In Dispute Resolution) in the United States of America.[4] Having better information about the state of knowledge and attitudes towards dispute resolution of their members will help these professional bodies plan and coordinate such educational activities.[5]

5. Of course interest in these matters is not wholly altruistic. As Kenfield notes, one result of lawyers becoming involved in non-litigious dispute resolution may be that:

   "The image of the profession will be enhanced because it need no longer be seen to be beyond the financial reach of the ordinary man in the street to achieve justice in his small business, or domestic disputes. The commercial wheels of our community will spin more freely, bringing additional fee income to the professionals who advise and service that industry."[6]

6. Another view of the value to the profession of researching lawyers' knowledge and beliefs has been expressed by an Australian legal academic known for his empirical studies:

   "The scarcity of serious empirical studies of the legal profession has contributed to the maintenance of the mystique which surrounds the work of lawyers, and as such has prevented the profession from making the positive adjustments in its work and organization that other professions and society have felt to be essential."[7]

7. Secondly, judges are also crucially implicated in issues related to plurality of dispute resolution methods. They are, of course, the embodiment of formalised state-sanctioned processes leading to resolution of disputes by force of law. However, many courts have embraced the need to remodel traditional litigation to meet the criticisms of excessive cost, inefficiency and delay which have been laid at their doorstep. Under the banner of "case management" and proactive judging reforms have been implemented which involve the introduction of other dispute resolution methods such as early neutral evaluation and court-ordered mediation. Yet some judges remain ambivalent to what they see as risky and unproved alternatives to traditional litigation. Such unease was voiced in 1990 by Sir Gerard Brennan in an address to the Business Law Section of the Law Council of Australia when he stated:

   "At present there is some misgiving about the capacity of the courts to deal with business disputes with the understanding, speed and expertise which the business community desires. It must be admitted that in some instances this concern is justified. But the answer is not to turn away from the courts and to seek alternative methods of dispute resolution: such a course weakens the very institution on which the orderly conduct of trade and commerce depends."[8]

   He went on to explain that he saw danger for the administration of justice if business lawyers refrained from bringing important legal principles and pressing practical issues to the courts, thereby depriving judges of the opportunity to keep the law up to date with the needs of society. Sir Gerard also saw a threat to the quality of the bench if an important cadre of the legal profession ceased to be attracted to judicial office. Judicial concerns such as these may be addressed and perhap s shown to be unfounded if better information concerning the practices and attitudes of lawyers in relation to dispute resolution were known.

8. Thirdly, the public also has an abiding interest in dispute resolution processes of all kinds, ranging from the High Court to sporting tribunals. Alternative dispute resolution, viewed as a "movement", has always had non-legal supporters whose arguments have been phrased in terms of "empowerment", "transformation", "demystification" and "informalisation".[9] These members of the "dispute resolution community" often seem indifferent or even hostile to lawyers' participation in alternative processes. By the same token, many lawyers may distrust or lack respect for resolution methods which are informal, unfettered by legal norms and which lack coercive power[10]. Lawyers may consider such alternative forms of dispute resolution to be "second class justice", perhaps particularly if they are excluded from them by virtue of their own professional status. Lurking behind these attitudes may well be lawyers' fear of loss of power, prestige and income to other organised practitioners who have formed groupings which may now be identified as the "victim-offender reconciliation community", the "community justice movement" and the like.[11] It should be enlightening for the dispute resolution community and the public to discover whether lawyers beliefs and attitudes toward dispute resolution reflect these tensions and concerns. At least debate may then proceed based on something more than presumed prejudices.

9. Finally, law schools have an interest in introducing their students to the skills that will be required in practice and exposing them to the professional issues practitioners face. It is clear today that study of alternatives to litigation must figure in academic legal educational offerings.[12] A clearer picture of the state of knowledge of legal practitioners and of their prevailing attitudes as regards dispute resolution will assist legal educators in tailoring courses to be of optimal value to their students.

10. These may be compelling practical arguments for conducting the type of empirical research described here, but for me there were also personal intellectual motivations. Being a former legal practitioner, I have as an academic developed a keen interest in the work of the legal profession as an important element of the interaction of law in society. Indeed, I have formed the view that what lawyers (rather than judges, or juries for instance) do is at the heart of the impact of law in our lives. The attitudes and beliefs which animate lawyers are however, not often reported[13] and a study such as this should contribute to a better description of professional activity and predilections. For all these reasons I decided to embark on empirical research concerning lawyers and dispute resolution.

    Research Design

11. It is implicit in the remarks above that I became interested in the relation of lawyers as a professional group to the various processes of dispute resolution which may now be found in our society. My interest was not limited to those practitioners who engaged in a particular form of dispute resolution (or indeed, in dispute resolution at all) and my focus also extended to at least one client grouping - business disputants.

12. The information I considered worth seeking could be described as the dispute resolution practices and experiences of those two groups and their ideas about those practices whether they participated in them or not. A key concept here is that a professional group such as lawyers may share a set of ideas and beliefs which can be characterised as a "culture" or "sub-culture". It has been said that the field of law may be defined by "a body of knowledge and skills, an interdependent set of values, attitudes, beliefs, interests and behaviours which are unique to it, and which distinguish it from other subcultural areas."[14] As an example of this phenomenon, one researcher has reported finding that litigating lawyers display a kind of "immunity" from "the various day to day rationalities of other sections of the population."[15]

13. While there may be commonalties in values and beliefs amongst lawyers as members of an elite profession some observers such as Justice Brennan see subgroups like "business lawyers" forming with their own identifiable practices and views. There is thus also the possibility that lawyers may not be an homogeneous group in some aspects such as their attitudes toward dispute resolution. This research should seek to reveal both similarities and differences of attitude toward dispute resolution within the legal profession.

14. I was also inclined to proceed on the hypothesis that business people might differ significantly from lawyers in their beliefs and attitudes toward dispute resolution. Comparisons of legal and economic theory lead me to believe there may be significantly different decision-making processes at work in these two disciplines. Within constrained economic systems a limited number of choices of action may be generated while legal reasoning through analogy may favour a more wide-ranging search for solutions. These habits of thought may be reflected in turn in varying views of business people and lawyers towards dispute resolution. In the most general terms therefore the design of this research entailed investigating the experiences and thoughts of a wide range of lawyers and business people regarding various methods of dispute resolution.

15. Although I have had some training in empirical research methods I am not a social scientist. Knowing that there are well accepted principles and practices in the field of survey research I turned to the leading texts and found much guidance.[16] Oppenheim's manual[17] in particular helped to focus my ideas into a coherent plan of research with several distinct stages: preliminary conceptualisation clarified by communications with a focus group[18]; refinement of hypotheses concerning what might be discovered; careful consideration of feasibility; painstaking design of the survey instrument; and piloting the use of the questionnaire before full-scale administration.[19]

16. In the course of proceeding through these phases I made several important decisions based largely on considerations of the time and funding available. First, I came to the conclusion that surveying both lawyers and business people was too ambitious to be tackled immediately. Consequently the project proceeded solely in relation to lawyers. (Designing a survey of business peoples' attitudes and beliefs in relation to dispute resolution in Australia would start with the work which has been done by Fulton.[20])

17. Further, conducting the investigation by means of in-depth interviews was also ruled out for reasons of time and cost. Some research in relation to lawyers and dispute resolution has been done using this method, however the numbers of persons interviewed have been modest.[21] Those studies which have used a written questionnaire directed to larger groups of lawyers have usually targeted practitioners already engaged in specific forms of dispute resolution.[22] The only research project I identified which involved a survey by questionnaire of a wide cross-section of lawyers nevertheless required participants to engage in litigation for at least 5% of their work.[23] One survey was located which was available to participants via the world wide web but which appeared to be directed to lawyers and laypersons.[24]

18. Taking the history of research in this area into account I decided my project should proceed by way of a written questionnaire directed to a large number of lawyers engaged in all aspects of legal practice. For the same practical reasons I also decided that administration of the questionnaire should be by post rather than telephone contact as Lande did with his "Business Disputing Opinions Survey".[25]

19. This process of research design also focussed my attention on what exactly it was I was trying to discover about lawyers. On reflection this included their histories, both in terms of professional background and training as well as their experiences (or lack thereof) of dispute resolution; their factual knowledge of dispute resolution processes; and their attitudes towards and beliefs in relation to those processes. A better picture of lawyers in these respects should help to clarify many of the issues facing the public and members of the legal community which have been described above.

20. This research therefore also differs from the considerable number of evaluation studies of particular dispute resolution processes which have been done over the years. The study described here does not deal with the question of quality of processes and results other than indirectly in that lawyers attitudes and beliefs about dispute resolution processes will likely reflect their subjective evaluations of these matters.[26]

    Research Methodology

21. By "methodology" I mean the more detailed procedural aspects of the research process as contrasted with the overall design of the study set out above. Again, I found the social scientific literature to be a valuable source and I benefited as well from the comments of experienced researchers to whom I am indebted.[27]

22. In operationalising this research it was necessary to further refine the group of potential participants in the survey. Clearly, the category of all lawyers in Australia was simply not manageable. The next logical subdivision of the profession would be to look at it on a statewide basis. Upon checking with the Western Australian Legal Practice Board (the professional accrediting body), I found the number of certificated resident lawyers in this state was 2485 as of June, 1996. This seemed like a workable number to contact whose responses should reflect the views of a substantial number of Australian legal practitioners.

23. The next major question of implementation then arose: how to obtain meaningful data from this target group. In order for conclusions to be drawn about a population surveyed in this way the respondents who return the questionnaire should reflect the makeup of the group as a whole. Obviously if all potential participants respond this condition is satisfied, but this is not to be expected. One accepted way of satisfying this requirement is by surveying selected members of the group chosen randomly from the whole. Provided a high enough proportion of these persons respond inferences can then be drawn about the larger group of which they are a representative sample. Another way of proceeding is to contact all members of the target group. Then, at least if a high enough proportion respond, and the respondents do not differ systematically from the target population in any relevant way, conclusions can again be drawn about the group as a whole.

24. After considering these operational alternatives at length my final decision was largely overtaken by events. In order to pilot the use of my questionnaire I administered it to the members of the Alternative Dispute Resolution Committee of the Law Society of Western Australia among others. After responding to the questionnaire, and in the course of discussing the project with them, the Committee offered to arrange for the instrument to be sent free of charge to all Law Society members. Although membership in the Society is not mandatory for practicing lawyers in Western Australia I was advised that about 85% of practitioners were members including all barristers. I learned also that perhaps the only notable group who may not be members were in-house corporate counsel, and that they had their own organisation (the Australian Corporate Lawyers Association).

25. The prospect of alleviating a significant financial burden in mailing costs and the benefit of having an institutional "sponsor" of this survey therefore effectively decided the methodological question. It was arranged that the questionnaire would be included in a regular monthly mailing of the Law Society of Western Australia's magazine Brief and that the following month a reminder letter (Appendix C) would be included with the next issue.

26. Taking up a suggestion of the Law Society Committee I contacted the corporate lawyers' organisation and they also agreed to send the questionnaire to their Western Australian members under cover of a letter of endorsement. A similar reminder was subsequently also to be sent to that group of lawyers.

27. It should be emphasised that such reminders are not an incidental element in survey research of this type. The response rate of those receiving questionnaires bears directly on the validity of the results when extrapolated to the target population as a whole. Too low a response rate makes it difficult to say that the responses collected reflect the views and experiences of those who received the questionnaire but who did not participate in the survey. Adopting measures to obtain the highest possible response rate is therefore an important part of conducting a survey such as this.

28. One approach to the problem of low response rates is to contact all non-responders. This of course requires some method of identifying these persons and makes it difficult to assure anonymity to respondents. It is also time consuming to correlate records so as to permit this supplementary communication. Another approach is to send reminders to all of the target group as many times as is necessary and feasible. Again, for practical reasons, I chose to send one reminder letter to all recipients of the original questionnaire. An additional reminder came two months later when the Brief magazine published a letter to the editor from me with a final request for responses.

    Questionnaire Design

29. The final form of questionnaire (Appendix A) used in this research is the result of many iterations and I have no doubt readers can find more improvements which might be have been made. However imperfect it may be, this instrument went through an extensive process of planning, drafting, redrafting, consultation and piloting over a period of eight months.

30. I have found that composing a survey questionnaire is quite unlike other writing which I normally do. On reflection, it is perhaps somewhat like composing a telegram in which brevity and clarity are the prime objects, while not forgetting some element of excitement. It is part of the task of securing a good response rate to make a questionnaire interesting, easy to read and to answer while still meeting all of the other objectives you have set for it.

31. Flowing from the basic research design outlined above I planned the survey instrument with several distinct parts in mind: one dealing with respondents' history and background (demographic questions); one dealing with beliefs or attitudes about dispute resolution; and another concerned with respondents' knowledge of dispute resolution processes and alternatives.

32. The process which I followed in arriving at the final wording and layout included circulating an original draft to a small focus group for comment followed by redrafting and recirculation. A further draft was piloted amongst a varied group of practitioners including some of my academic colleagues. The Law Society Alternative Dispute Resolution Committee also responded to and commented on the final draft. At all of these stages changes were made to reflect the feedback received.

33. Part I of the questionnaire was intended to try to gain a reader's attention and focus their thoughts on the subject matter of the survey starting with a question mentioning "ADR" but without defining it. The remainder of this Part seeks information about their engagement in dispute resolution processes and degree of familiarity with them. Question 3 for instance is designed to give a measure of the respondent's "dispute resolution awareness", albeit based on their subjective judgment, while question 4 looks at their knowledge of what is happening in the dispute resolution field in Western Australia. As Boulle has noted[28], Australian lawyers have been encouraged to consider including dispute resolution clauses when preparing contracts for clients and question 6 will help determine to what extent this message has been received and acted upon.

34. Part II of the questionnaire further explores respondents' degree of involvement in litigation and other disputing processes. These questions will provide a somewhat more objective measure of the extent to which respondents' views have a basis in experience with dispute resolution. Questions 10 and 12 were added after consulting with the Law Society's Alternative Dispute Resolution Committee who were of the view that they would contribute valuable information about the volume of dispute resolution activity of various kinds in the Western Australian legal community. Responses to these items will provide useful information relating to the suggestion that dispute resolution alternatives may be more often talked about by lawyers than actually employed.

35. Part III focuses on respondents' attitudes and beliefs. Rather than ask respondents to state their views through open-ended questions I adopted a well-recognised social science research technique in which they are invited to react to carefully prepared statements. The goal is to formulate what Oppenheim describes as "vivid expressions" of single ideas about which respondents are expected to have definite views. The direction and strength of respondents' reaction can then be measured using what is known as a "Likert" scale representing degrees of sentiment along a polarised continuum.

36. For example, question 14 explores a much debated issue: the optimum selection of disputes for different dispute resolution processes[29] by proposing various "factors in choosing" for reaction. The following series of questions (15 to 23) focus on three key issues, with three questions directed to each. This will allow the creation of an "index" or rating on each of these significant issues by combining the answers of each respondent for these groups of questions. The direction and strength of respondents views on these important issues will be brought out in this way. In this Part I chose statements reflecting the principal concerns which motivated this research as discussed above.

37. One group of questions in this Part (15, 19 and 21) thus are intended to provide an indication of the strength of respondents' identification with what might be called "professional values" in the area of dispute resolution. Question 15 explores the extent to which lawyers believe participation in non-judicial dispute resolution processes lowers one's professional standing amongst peers. Question 19 invites respondents to take a position as regards "professional chauvinism", or the belief that lawyers are peculiarly suited to play a major role in all dispute resolution processes.[30] Lastly, question 21 should reveal lawyers' views concerning the question who should decide what is the appropriate dispute resolution process - lawyer or client. Respondents with a strong belief in the specialised knowledge and wisdom of the profession in the area of dispute resolution would be expected to "strongly disagree" with the statement posed in this question. Taken together these three questions are designed to show the extent to which lawyers' attitudes towards dispute resolution are shaped by their identification as legal professionals and by the claims to status and power assumed to go with that role.

38. Another question group (16, 18 and 22) is intended to bring out lawyers concerns with cost, efficiency and the suitability of dispute resolution processes for business disputes. Question 16 deals directly with the common complaint that litigation involves excessive cost and delay which it is hoped other dispute resolution processes can avoid.[31] The suggested potential for preservation of business relationships in alternative dispute resolution processes is enunciated in question 18. Question 22 is to some extent the reverse of question 16 and it is expected that respondents will react oppositely than they did to the latter if consistent in their views. This group of questions is designed to bring out that "business orientation" of lawyers which appears to trouble some members of the legal community. Respondents who are strongly in agree ment with the statements in items 16 and 18 and strongly opposed to that in item 22 could be said to look at dispute resolution primarily from an economic or business perspective.

39. The last group of questions in this Part (17, 20 and 23) are intended to reveal whether the respondent has a principled aversion to alternative processes based on concerns for "justice" and its proper administration.[32] Question 17 reflects the concern described above that alternatives to litigation withdraw crucial issues from judicial scrutiny and so obstruct the improvement of the law to meet changed conditions. In question 20 respondents are asked to reflect on the private nature of alternatives to litigation and whether this might promote injustice behind closed doors. Lastly, item 23 gives voice to the complaint that non-judicial processes persistently tend to "split the difference" rather than engage in principled resolution of disputes. Respondents who strongly agree with the statements in these three questions could be described as being convinced that only the courts are fit to do justice to disputants.

40. Part IV concludes the questionnaire with some further demographic data such as information concerning training in disputing processes and current work environment. There are no demographic questions concerning respondents' age or gender since my research design did not identify these as relevant factors about which hypotheses could be formulated. Rather this study is based upon the significance of sub-cultural influences which may arise out of the professional role of lawyers. Thus, question 24 inquires into the length of time the respondent has held professional status which is only an indirect and inexact indication of the respondent's likely age. This Part also includes a final open-ended question (29) inviting a written response. Such a concluding question was proposed by the Law Society's Alternative Dispute Resolution Committee and reflects a matter of current concern in Western Australia where the Supreme Court has moved to introduce mediation into court processes. It also reflects an issue that has surfaced in many other jurisdictions - the compatibility of the courts and alternative dispute resolution processes.

41. The preparation of these questions involved research, consultation, suggestion and frequent amendment. They are truly the result of a collaborative process and I believe are better for that reason. A cover letter mentioning the purpose of the survey and the involvement of the Law Society was also drafted and incorporated in the questionnaire booklet (Appendix B).

42. I should also mention that before the questionnaire was administered I sought approval from my university's Human Research Ethics Committee which reviewed the survey plan and documents. The normal requirement that a written consent to take part be obtained from all respondents was waived having regard to the nature of the survey and the wording of the instrument to be used. Return of the questionnaire would itself constitute sufficient indication of informed consent to participate.

    Preliminary Results

43. As predicted by the methodological literature there was a large volume of responses in the first week or two after the magazine containing the questionnaire was mailed. This then tapered down rather quickly to a trickle and only a few responses were received after the reminder letter one month later.

44. Although 418 busy lawyers took the time to complete and return the questionnaire this was only about 16% of the target population - members of the Law Society who received the Brief magazine. Such a response rate may make it unwise to generalise the findings of this survey. However, comparison of the group of respondents with the population of lawyers in Western Australia reveals a reasonable similarity as shown in the following demographics where percentages of respondents in various categories are listed with the Statewide percentages in brackets:
    • Barrister 7.7% (5.2%)
    • Admitted before 1970 6.8% (16%)
    • Admitted in the '70s 21.2% (13.3%)
    • Admitted in the '80s 28.3% (34.6%)
    • Admitted in the '90s 42.7% (36.1%)
    • Private Practice 81.8% (81.4%)
    • Corporate 5.1% (2.6%)
    • State Government/Agency 5.1% (7.4%)
    • Commonwealth Government/Agency 2.4% (2.6%)

45. The basic results of this survey can be seen in the frequencies of responses to the questions shown on the questionnaire form (Appendix A). These figures will require more scrutiny and statistical testing for correlations between various items however valuable information is now available to help answer some of the questions posed by this research.

46. Legal professional organisations will likely be heartened by the responses to question 15 which indicates most respondents did not see alternative dispute resolution activity as lower status or demeaning work. On the other hand, professional bodies may be concerned to find that large percentages of practitioners report their firms have no policy to consider alternative processes (question 5) or to incorporate provision for such alternatives in legal documents they draft (question 6). These results may point to the need for renewed campaigns to increase "ADR awareness" in mainstream legal practice.

47. It will be of interest to many in the judiciary, such as Sir Gerard Brennan, that there does appear to be a strong business perspective amongst many of the respondents related to their thinking about dispute resolution processes. Responses to the key group of questions in this area (16, 18 and 22) show a strong concern for economic criteria in resolving disputes. Amalgamating the responses to this series of questions gives a good indicator of the strength of commercial concerns in shaping legal practice in the ADR field. This measure shows that 88% of respondents indicated moderate to strong support for alternatives to litigation in resolving commercial disputes.

48. Non-lawyer members of the public may find some comfort in the responses to question 21 which indicate strong support for allowing clients to choose from amongst a range of dispute resolution alternatives. Even the rather mixed responses to question 19 concerning the special qualities of lawyers as neutrals may give heart to those who fear monopolisation of alternative processes by the legal profession. Perhaps more lawyers than suspected recognise the value of other professional and vocational backgrounds in helping to resolve some disputes.

49. Law schools may be disappointed to see that less than a fifth of all respondents received some instruction in alternative dispute processes before being admitted to practice (question 25). However they may also see another market for their services in the large proportion of respondents who have never received such training despite years of practice (question 26).

    Conclusion

50. This then is the story of how the Western Australian Dispute Resolution Survey came to be conducted. I have tried to convey some of the trials and tribulations but also some of the pleasures involved in this type of empirical research. I hope that the story has inspired and not daunted others.

51. Looking back , I now believe that many of the shortcomings of the project may have been averted if additional funding had been available and the project had developed as a collaboration with a social scientist. This is not to suggest that a legal academic need have no familiarity with the social science methodology employed but rather that these techniques may have been applied more efficiently and creatively by a team which included an empirically oriented sociologist for instance.

52. Despite the shortcomings of the project I believe that some valuable data has been collected which when further analysed will be of real use to all parties interested in the future of alternative dispute resolution processes and in lawyers' roles in them. In order to encourage debate and feedback about this research a website has been created which readers are invited to visit at http://carmen.murdoch.edu.au/~zariski/adr.html.

*I wish to gratefully acknowledge grants from the Centre for Commercial and Resources Law, Perth, and the Murdoch University School of Law in support of this research. Thanks also go to the following for their comments, advice and assistance: Linda Donohue, Shani Fitzgerald, Jo Goodie, Rob Guthrie, Shane Henderson, Deborah Hensler, Laurie James, Tim Johnstone, John Lande, Michael Pendleton, Nadja Spegel, Lynn Stephen and Lisa Young.

[1] A similar exhortation and guide to empirical research for those interested in the field of corporate law has recently been offered by Roman Tomasic. See "Using Social Science Research Methods in the Study of Corporate Law", Canberra Law Review, vol 3, no 1 (1996), 24.

[2] See Jon Kenfield, "Taking the 'A' Out Of 'ADR'", Brief (Law Society of Western Australia), October 1988, 18.

[3] American Bar Association, Section of Legal Education and Admissions to the Bar, Legal Education and Professional Development - An Educational Continuum, Report of The Task Force on Law Schools and the Profession: Narrowing the Gap (often referred to as the "MacCrate Report"), Chicago: 1992.

[4] One current example out of many such offerings is a continuing legal education seminar presented by the Law Society of Western Australia in conjunction with LEADR: "Mediation - The Lawyer's Role", Perth, 5 December, 1996.

[5] For some perspectives on training lawyers in dispute resolution processes see Susan Carr-Gregg, "Alternative Dispute Resolution in Practical Legal Training: Too Little, Too Late?", Journal of Professional Legal Education, vol 10, no 1 (June 1992), 23; and Christine Chinkin, "Educating Lawyers About Mediation", Journal of Professional Legal Education, vol 10, no 1 (June 1992), 43.

[6] Kenfield, supra note 1, 18.

[7] Roman Tomasic, "Introduction", in Roman Tomasic, ed, Understanding Lawyers: Perspectives on the Legal Profession in Australia, Law in Society Series, Sydney: Law Foundation of New South Wales and George Allen & Unwin, 1978, xiii. It should be noted that lawyers and their work have been the subject of more extensive study in the United States; see for instance Herbert M Kritzer, The Justice Broker: Lawyers and Ordinary Litigation, New York: Oxford University Press, 1990; and Herbert M Kritzer, Let's Make a Deal: Understanding the Negotiation Process in Ordinary Litigation, Madison, Wis: University of Wisconsin Press, c1991.

[8] Hon Sir Gerard Brennan, "Professional Orientation: Business or Law?", Australian Dispute Resolution Journal, vol 1, no 4 (November 1990), 225, 226.

[9] For a good treatment of these elements of the alternative dispute resolution movement see Christine B Harrington, Shadow Justice, Westport, Conn: Greenwood Press, 1985. See also Symposium on Informal Dispute Resolution, Law & Social Inquiry, vol 13, no 1 (1988), 113 - 154.

[10] As Julian Riekert has pointed out lawyers' views of "ADR" often seem to be colored by a somewhat macho, aggressive attitude which associates "alternative" with weakness. He states "These factors have contributed to an image of ADR as an inferior form of dispute resolution, practiced by those who are too timid or eccentric to engage in the real and effective, tried and tested, form of dispute resolution - litigation.": "Alternative Dispute Resolution in Australian Commercial Disputes: Quo Vadis?", Australian Dispute Resolution Journal, vol 1, no 1 (February 1990), 31. And see John Dieffenbach, "Psychology, Society and the Development of the Adversarial Posture", Ohio State Journal of Dispute Resolution, vol 7 (1992), 261 cited in Edwin H Greenbaum, "Lawyers' Agenda for Understanding Alternative Dispute Resolution", Indiana Law Journal, vol 68 (1993), 771, 772 n 11.

[11] Antagonisms may exist on both sides. Wendy Faulkes for instance speaks of a "dispute resolution industry" and profession. She remarks in relation to the growing use of mediation: "The effective identification of competencies will be a most important step in ensuring that the service users get the best service. Without this there is a danger that existing professionals will erect barriers to others entering the field, based on protectionism, not competency. It will be a difficult task, requiring all of our professional skills. The result will make the effort worthwhile.": "The Dispute Resolution Industry - Defining the Industry and Establishing Competencies", Australian Dispute Resolution Journal, vol 5, no 4 (November 1994), 285, 291. For another account of "turf wars" in the field of resolving business disputes see: Yves Dezalay and Bryant Garth, "Fussing about the Forum: Categories and Definitions as Stakes in a Professional Competition", Law & Social Inquiry, vol 21, no 2 (Spring 1996), 285. For perspectives which emphasise the opportunities for lawyers see Jude Wallace, "Legal Practice Business Solutions: Professional Opportunities in ADR", Australian Law Journal, vol 70 (November 199 6), 876; and George W Coombe, "Dispute Resolution and the Corporate Law Firm: Toward a Full-Service Legal Practice", The Arbitration Journal, vol 45 (March 1990), 29. For insight into the issue of qualifications for dispute resolution practice see "Special Report from the SPIDR Commission on Qualifications: Ensuring Competence and Quality in Dispute Resolution Practice: September 1994", Commercial Dispute Resolution Journal, vol 1, no 2 (December 1994), 147.

[12] See for instance, Richard Calver, "Teaching Alternative Dispute Resolution in Australian Law Schools: A Study", Commercial Dispute Resolution Journal, vol 2, no 2 (April 1996), 209; Marc Galanter, "Worlds of Deals: Using Negotiation to Teach about Legal Process", Journal of Legal Education, vol 34 (1984), 268; Eric D Green, "A Comprehensive Approach to the Theory and Practice of Dispute Resolution", Journal of Legal Education, vol 34 (1984), 245; Hilary Astor and C M Chinkin, "Dispute Resolution As Part of Legal Education", Australian Dispute Resolution Journal, vol 1, no 4 (November 1990), 208; Hilary Astor and Christine Chinkin, "Teaching Dispute Resolution: A Reflection and Analysis", Legal Education Review, vol 2 (1990), 1; Beryl Blaustone, "Training the Modern Lawyer: Incorporating the Study of Mediation Into Required Law School Courses", Southwestern University Law Review, vol 21 (1992), 1317; Carrie Menkel-Meadow, "To Solve Problems, Not to Make Them: Integrating AD R in the Law School Curriculum", Southern Methodist University Law Review, vol 46 (Summer 1993), 1995; and Karen D Kraemer, "Teaching Mediation: The Need to Overhaul Legal Education", The Arbitration Journal, vol 47 (September 1992), 12.

[13] See below, Research Design.

[14] D S Anderson, J S Western, and P R Boreham, "Law and the Making of Legal Practitioners", in Roman Tomasic, ed, Understanding Lawyers: Perspectives on the Legal Profession in Australia, Law in Society Series, Sydney: Law Foundation of New South Wales and George Allen & Unwin, 1978, 184. See also Richard L Abel and Philip S C Lewis, "Putting Law Back into the Sociology of Lawyers", ch 11 in Richard L Abel and Philip S C Lewis, ed, Lawyers in Society, vol 3, Comparative Theories, Berkeley: University of California Press, c1988-c1989.

[15] M Cain, "Necessarily Out of Touch: Thoughts on the Social Organisation of the Bar", in P Carlen, ed, The Sociology of Law, Sociological Review Monographs No 23, Keele: University of Keele, 1976, 246.

[16] Chief among these were: Winston Jackson, Research Methods: Rules for Survey Design and Analysis, Scarborough, Ont: Prentice-Hall, 1988; Robert K Gable and Marian B Wolf, Instrument Development in the Affective Domain: Measuring Attitudes and Values in Corporate and School Settings, Boston: Kluwer, 1993; and A N Oppenheim, Questionnaire Design, Interviewing and Attitude Measurement, London: Pinter, 1966, (New Edition 1992).

[17] Oppenheim, supra note 15.

[18] My focus group included a dispute resolution provider, a barrister, legal academics (some of them also legal practitioners) and socio-legal researchers.

[19] Oppenheim, supra note 9, 8-9. My pilot study group included 6 members of the Alternative Dispute Resolution Committee of the Law Society of Western Australia.

[20] See the questionnaire, Appendix 1, in Maxwell J Fulton, Commercial Alternative Dispute Resolution, Sydney: Law Book Co, 1989; and see also a survey of lawyers concerning their perceptions of the legal knowledge and competence of their business clients: Eric Steinberg and Nancy Ellis, "Managerial Proficiency in Law: Views of the Legal Profession", New Zealand Law Journal, June 1990, 209.

[21] See, for instance, Julien Riekert, "Alternative Dispute Resolution in Australian Commercial Disputes: Quo Vadis?", Australian Dispute Resolution Journal, vol 1 no 1 (February 1990), 31, (20 solicitors interviewed); Sally Wheeler, "Lawyer Involvement in Commercial Disputes", Journal of Law and Society, vol 18, no 2 (Summer 1991), 241, (16 lawyers interviewed).

[22] See M Dewdney, B Sordo, and C Chinkin, Contemporary Developments in Mediation within the Legal System and Evaluation of the 1992-93 Settlement Week Program, (NSW) April 1994, as reported in Bridget Sordo, "The Lawyer's Role in Mediation", Australian Dispute Resolution Journal, vol 7, no 1 (February 1996), 20 (questionnaire administered to mediators, lawyers and parties participating in a mediation program); Rob Davis, "Negotiating Personal Injury Cases: A Survey of the Attitudes and Beliefs of Personal Injury Lawyers", Australian Law Journal, vol 68 (October, 1994), 734, (148 solicitors specialising in personal injury litigation surveyed); Louise Steer, "A Study of Family Mediators", Australian Dispute Resolution Journal, vol 6, no 3 (August 1995), 165, (14 family mediators surveyed of whom 6 were lawyers); and Rachael Field, "The Use of Litigation and Mediation for the Resolution of Custody and Access Disputes: A Survey of Queensland Family Law Solicitors", Australian Dispu te Resolution Journal, vol 7, no 1 (February 1996), 5, (477 solicitors with expertise in family law); Robert Guthrie, Workers' Compensation Conciliation and Review: A Survey of Legal Practitioner Attitudes, Perth: Curtin University School of Business Law Working Paper Series, September 1996 (survey of 36 firms of solicitors practicing in the area of workers' compensation) . In Scotland a survey has recently been conducted by way of interview and questionnaire of lawyers and others involved or interested in alternative dispute resolution in which 67 interviews were held and 40 questionnaire responses obtained: Bryan Clark and Richard Mays, "Regulating ADR - The Scottish Experience", Web Journal of Current Legal Issues, [1996], no 5.

[23] John Lande, "Business Disputing Opinions Survey", private communication. (Professor Lande is at the Department of Dispute Resolution at Nova Southeastern University in Florida.)

[24] David Mott, "Legal Research Survey - The Role of the Law in Alternative Dispute Resolution Procedures", available at the following url: http://www.ozemail.com.au/~mott.

[25] Lande, supra note 19. Lande surveyed 178 business lawyers and executives in four American States.

[26] For a review of research based upon the test of participant "satisfaction" in evaluating dispute resolution processes see Renata Singer, "The Rolling Stones Revisited: Exploring the Concept of User Satisfaction as a Measure of Success in Alternative Dispute Resolution", Australian Dispute Resolution Journal, vol 6, no 2 (May 1995), 77; see also Marc Galanter, "The Quality of Settlements", Journal of Dispute Resolution, 1988, 55; and Quality of Dispute Resolution Symposium Issue, Denver University Law Review, vol 66, no 3 (1989).

[27] Deborah Hensler of the Rand Institute for Civil Justice in California and Professor John Lande of the Department of Dispute Resolution at Nova Southeastern University in Florida were particularly generous with their time and helpful with their advice.

[28] See Laurence Boulle, "The Changing Contours of Dispute Resolution: Implications for the Insurance Industry", Insurance Law Journal, vol 3 (1990), 167.

[29] See Jack Effron, "Alternatives to Litigation: Factors in Choosing", Modern Law Review, vol 52 (July 1989), 480; Hazel Genn, "Tribunals and Informal Justice", Modern Law Review, vol 56 (May 1993), 393; and Simon Roberts, "Alternative Dispute Resolution and Civil Justice: An Unresolved Relationship", Modern Law Review, vol 56 (May 1993), 452.

[30] Note the arguments in favour of this position presented by Professor John Wade in his editorial "My Mediator Must be a QC", Australian Dispute Resolution Journal, vol 5, no 3 (August 1994), 161.

[31] For a summary of the arguments in this regard see Warren Pengilley, "Alternative Dispute Resolution: The Philosophy and the Need", Australian Dispute Resolution Journal, vol 1 no 2 (May 1990). 82.

[32] Perhaps the classic exposition of this point of view is found in Owen Fiss's article "Against Settlement", Yale Law Journal, vol 93 (1984), 1073. But see the rejoinder by Andrew McThenia and Thomas Shaffer, "For Reconciliation", Yale Law Journal, vol 94 (1985), 1660 and Fiss's reply, "Out of Eden" following at 1669. And see Barbara Yngvesson, "Disputing Alternatives: Settlement as Science and as Politics", review of Goldberg, Green and Sander, Dispute Resolution, Boston: Little, Brown, 1985, in Law & Social Inquiry, vol 13, no 1 (1988), 113. For a recent summary of the strengths of adjudication in relation to other dispute resolution processes see "Address Given by Justice Ronald Sackville at the Launch of LEADR/LBC Australasian Dispute Resolution Service", Australian Dispute Resolution Journal, vol 7, no 2 (May 1996), 153.

LITIGATION  0(3%)  1(2%)  2-3(10%)  4-5(9%)  6-10(11%)  11-15(10%)  
16-20(7%)  20+(48%) 

ARBITRATION  0(47%)  1(22%)  2-3(17%)  4-5(6%)  6-10(4%)  11-15(3%)  
16-20(1%)  20+(1%) 

MEDIATION  0(20%)  1(18%)  2-3(32%)  4-5(15%)  6-10(8%)  11-15(1%)  
16-20(2%)  20+(5%) 

CONCILIATION  0(34%)  1(7%)  2-3(15%)  4-5(11%)  6-10(13%)  11-15(4%)  
16-20(3%)  20+(14%) 

EARLY NEUTRAL EVALUATION  0(77%)  1(10%)  2-3(8%)  4-5(4%)  6-10(1%)  
11-15(0%)  16-20(0%)  20+(0%) 

MINI-TRIAL  0(90%)  1(4%)  2-3(1%)  4-5(3%)  6-10(0%)  11-15(1%)  
16-20(0%)  20+(0%) 

OTHER AS ABOVE  0(64%)  1(5%)  2-3(6%)  4-5(4%)  6-10(5%)  
11-15(3%)  16-20(0%)  20+(13%) 

ARBITRATION  0(82%)  1(0%)  2-3(10%)  4-5(7%)  6-10(2%)  11-15(0%)  
16-20(0%)  20+(0%) 

MEDIATION  0(55%)  1(9%)  2-3(21%)  4-5(3%)  6-10(5%)  11-15(3%)  
16-20(3%)  20+(3%) 

CONCILIATION  0(77%)  1(10%)  2-3(3%)  4-5(3%)  6-10(0%)  11-15(0%)  
16-20(2%)  20+(5%) 

EARLY NEUTRAL EVALUATION  0(84%)  1(4%)  2-3(7%)  4-5(2%)  6-10(2%)  
11-15(0%)  16-20(2%)  20+(0%) 

MINI-TRIAL  0(0%)  1(0%)  2-3(0%)  4-5(0%)  6-10(0%)  11-15(0%)  
16-20(0%)  20+(0%) 

OTHER AS ABOVE  0(96%)  1(2%)  2-3(0%)  4-5(0%)  6-10(0%)  
11-15(0%)  16-20(0%)  20+(2%) 

            Very     Fairly   Slightly  Not At All   Not
           Important Important Important Important   Sure
           (16%)      (24%)     (19%)      (30%)    (10%)
            1...........2.........3..........4.........5

            Very     Fairly   Slightly  Not At All   Not
           Important Important Important Important   Sure
           (25%)      (39%)     (18%)      (13%)     (5%)
            1...........2.........3..........4.........5

            Very     Fairly   Slightly  Not At All   Not
           Important Important Important Important   Sure
           (49%)      (31%)     (11%)      (7%)      (2%)
            1...........2.........3..........4.........5

            Very     Fairly   Slightly  Not At All   Not
           Important Important Important Important   Sure
           (51%)      (29%)     (10%)      (7%)      (2%)
            1...........2.........3..........4.........5

            Very     Fairly   Slightly  Not At All   Not
           Important Important Important Important   Sure
           (44%)      (36%)     (13%)      (5%)      (3%)
            1...........2.........3..........4.........5

  strongly   somewhat  neither agree nor  somewhat    strongly
  agree       agree        disagree       disagree    disagree
 (2%)         (6%)           (22%)           (23%)        (48%)
  1............2...............3...............4............5

  strongly   somewhat  neither agree nor  somewhat    strongly
  agree       agree        disagree       disagree    disagree
 (52%)        (34%)          (9%)            (3%)         (3%)
  1............2...............3...............4............5

  strongly   somewhat  neither agree nor  somewhat    strongly
  agree       agree        disagree       disagree    disagree
 (2%)         (16%)          (19%)           (34%)        (29%)
  1............2...............3...............4............5

  strongly   somewhat  neither agree nor  somewhat    strongly
  agree       agree        disagree       disagree    disagree
 (37%)       (40%)           (15%)           (6%)         (1%)
  1............2...............3...............4............5

  strongly   somewhat  neither agree nor  somewhat    strongly
  agree       agree        disagree       disagree    disagree
 (12%)       (31%)           (35%)           (19%)        (4%)
  1............2...............3...............4............5

  strongly   somewhat  neither agree nor  somewhat    strongly
  agree       agree        disagree       disagree    disagree
 (3%)        (25%)           (22%)           (34%)        (16%)
  1............2...............3...............4............5

  strongly   somewhat  neither agree nor  somewhat    strongly
  agree       agree        disagree       disagree    disagree
 (45%)       (36%)           (10%)           (7%)         (2%)
  1............2...............3...............4............5

  strongly   somewhat  neither agree nor  somewhat    strongly
  agree       agree        disagree       disagree    disagree
 (2%)        (20%)           (15%)           (43%)        (20%)
  1............2...............3...............4............5

  strongly   somewhat  neither agree nor  somewhat    strongly
  agree       agree        disagree       disagree    disagree
 (3%)        (18%)           (20%)           (34%)        (25%) 
  1............2...............3...............4............5