A balancing act: Model Litigant Guidelines

Claire Bibby, COO of Immediation

View Claire’s profile at Immediation dispute resolution services.

When involved in a dispute against a government entity, I’ve often heard counsel quote the ‘Model Litigant Guidelines”.

As a General Counsel, looking to gain a strategic advantage, I’d have to say that those three words – “Model Litigant Guidelines” – rarely seem to have any impact on the behaviour of those in the room.   So why do we have them?

The overarching purpose of the MLG is to ensure that government litigation has public interest at the forefront.  However practically speaking, its meaning – and the impact the guidelines have on a person’s behaviour – is far from clear to those on the other side.  

First introduced in 1999 by the Attorney General, under SECT 55ZF of the Judiciary Act 1903, the MLG sets out the behavioural standards that state departments and government agencies  – as well as their legal representatives – must follow, before, during, and after court proceedings. 

The obligation to rebalance power

Given the potential access to resources and information, along with the investigative power of the government, the aim of the MLG is to ensure there’s a balance of power between companies, individuals and government bodies when they enter into litigation. 

Incorporated at both a state and federal level, a key obligation – along with the most basic of honesty and consistency – is the consideration of Alternative Dispute Resolution (ADR), where possible. The methods of ADR can include mediation, arbitration, conciliation or expert determination, but the ultimate aim is ‘to avoid and limit the scope of the legal proceedings’.   Resolving an issue outside of the courts should significantly benefit all parties by reducing expenditure, time, and stress, as well as improving productivity and minimising risk. 

Online Dispute Resolution is simply an extension of ADR

The legal industry, as a whole, is in the midst of a technological transformation and given the advancements in technology, it’s likely that we’ll see an increase in the number of government agencies going beyond ADR and turning to online dispute resolution (ODR) to resolve their legal disputes.   At Immediation, we are collaborating with a number of government instrumentalities and their General Counsels who are leading the charge to implement ODR as a way to resolve their disputes.

View Immediation’s dispute resolution process.

Beyond time and money saved, ODR allows government agencies to communicate directly and to bring in facilitators, mediators and arbitrators to the resolution process as needed.  The choice also directly aligns and arguably exceeds, the expectations of the model litigant guidelines.

The fine print

It is important to highlight that while the MLG have been incorporated at both a state and federal level, in practice, they are only enforceable by – or on the application of – the Attorney-General, who may also impose sanctions. 

Throughout 2017-2018, the Office of Legal Services Coordination (‘OLSC’) received notice of 94 breaches of the model litigant obligations.  The outcome though? Unfortunately, that doesn’t appear to be publicly available information.

Politicians and government bodies are, rightly so, under constant scrutiny over how public funds are spent. It’s crucial that they – and the legal professionals representing their interests – take steps to ensure that model litigant obligations are actively met and that all avenues of alternative dispute resolution are being considered as a result.