QUESTIONS TO ASK THE CLIENT

 When clients arrive at the firm seeking legal advice, they are usually very emotional and distressed, therefore the following questions must be asked in order to understand how you can assist your client in the best possible way while they face high conflict situations.

WHAT DISPUTE IS THE CLIENT FACING?

1.     Are you open to the idea of exploring a facilitative process or an advisory process or a determinative process or an adversarial process?

This will enable you to identity whether the client is adamant in going to court or whether they are seeking a faster, cost effective and customised solution to their dispute.

 2.     What is the dispute about?

 This will enable you to identify the subject matter and legal area of the dispute.  After identifying that, you can determine what process will suit them best and whether there is a mandatory mediation requirement relating to the dispute.

The following are suggestions of possible DR avenues to take: 

Legal Area	Process
Commercial disputes	Mediation or Conciliation or Arbitration
Community strata schemes	Conciliation
Construction projects	Conciliation or Collaborative Law
Family dispute	Mediation and/or Collaborative Law
Home building	Conciliation
Motor Vehicle	Conciliation
Professional malpractice	Conciliation and/or Collaborative Law
Tenancy	Conciliation

Please note that the above table is not an exhaustive list and only provides mere suggestions.  You must explore all processes first to determine the most appropriate process for your client. Also, check if the client has previously signed an 'agreement to agree'.  If so, you must follow it. 

WHAT DOES YOUR CLIENT WANT TO ACHIEVE?

1. Is there a desire for you to keep the dispute confidential and private?

This will immediately allow you to cross out litigation if the client seeks a process that ensures confidentiality.

2.     Are you seeking reconciliation and for the relationship to be preserved?

If there is a desire to maintain an ongoing relationship then mediation, collaborative law or conciliation should be explored over litigation because it allows for open communication with an aim to acknowledge the interests/values of the parties, whereas the aggressive nature of litigation often has negative impacts on relationships.

3.     Do you want an enforceable court order or is the width of remedies important?

Processes other than litigation will allow the clients to customise a solution that is creative and far more flexible than the remedies provided by the courts. If court orders such as injunction or specific performance is sought, or if damages sought exceed the threshold amount of the tribunals and other institutions, then litigation may be the most suitable process to select. 

4.     Is the conflict interest and/or value based ?

If the client’s issue is interest based then negotiation, mediation and collaborative law can be explored.  If the client’s conflict is based on differences of opinions on expert advice then conciliation or arbitration can be explored.  If the client wants legal aspects of the dispute to be cleared and is not interested in the opposing party’s interest/values then litigation can be explored as a last resort. 

WHAT OTHER SITUATIONS OF THE CLIENT ARE IMPORTANT?

1.     Are you facing financial difficulty?

If the client is seeking a DR process that is cost effective then any DR process other than litigation should be explored.  Legal Aid can also be considered – Click here for more information on Legal Aid.

2.     How emotional are you about this situation?

This will allow you to determine whether the client is psychologically ready to deal with the conflict.  It will also allow you to determine whether the client will be able to negotiate effectively, or whether a neutral third party is required in order to facilitate the process so that a mutually acceptable agreement can be reached. 

It can also allow you to identify whether conflict coaching is required. Conflict coaching can be used before the client enters a negotiation, mediation, conciliation or collaborative law process in order to benefit the client.  Role-plays will allow the client to be aware of potential situations that may arise.  This will assist the client in developing strategies when responding to different situations so that the negative impact of the consequences can be reduced or avoided and open communication can be maintained.

3.     Is there anything in the past history between yourself and the opposing party that may affect the conflict? 

This will enable you to identify whether the client has tried to resolve the conflict before coming to you.  This will also enable you to identify whether the client has been subject to violence in the past.  For example, in family disputes if the client has been subject to violence then their control and self-determination may be undermined in the mediation process and therefore a collaborative law approach may be a better option for them.   

 Knowing all this information will help you make an informed choice when assisting your client in picking the most appropriate DR process.

 According to Menkel-Meadow: 

"...we need both new multiparty processes (beyond the outmoded two-sided adversary system) and new substantively creative solutions (beyond the limited remedial imaginations of the courts and other legal institutions) to find justice in our increasingly diverse portmodern world..." - click here for reference

As such, it is important to recognise that effective dispute resolution is enabled by a range of processes which best meets the needs of the client. Click here to see what processes are available.