Bar Association’s mediator stand draws sharp rebuke from silks

The NSW Bar Association has suffered a blow in preventing barristers taking silk if they specialise in mediation.

One of the last fig leaves of legitimacy has now drifted away from the NSW Bar Association’s ­attempts to prevent barristers taking silk if they specialise in mediation.

In a little noticed change, the rule governing the definition of barristers’ work has been altered — not by the NSW Bar Association but by the Legal Services Council.

The definition now states ­explicitly that barristers’ work includes mediation, arbitration, other forms of alternative dispute resolution as well as representing clients involved in these processes. To most barristers, this ­merely recognises the reality of the world in which we live. But for those who run things at the NSW Bar Association, it must have been dreadfully embar­rassing.

It means the Bar Association now looks even sillier than it did after a Federal Court ruling in July that unmasked an attitude towards mediators that can only be described as duplicitous.

That case had been brought by prominent mediator Mary Walker, who exposed evidence that her application for silk had not even been considered by the selection committee.

Even worse, the judgment in Walker’s case revealed a system of governance at the Bar ­Association that is so deeply flawed, it has triggered a revolt by some of the state’s most prominent silks.

The judgment shows that the Bar Council has been incapable of making a clear decision on what to do about barristers who specialise in mediation and want to be considered for silk.

Its approach has all the rigour of a reed blowing in the wind, drifting one way and then the other.

First it resolved that there is no impediment to mediators taking silk. Then it decided not to change the silk selection protocol to make it clear that mediators are entitled to be considered for silk.

This incoherence, and the ­injustice to Walker, has been too much for 12 silks who have sent a startlingly blunt protest letter to Bar Association president Noel Hutley SC. They write that the Walker case shows that the Bar Council is “simply unwilling or unable to grapple with silk ­selection and take ownership of it as a problem to be solved to the ­extent it is operating unfairly, ­capriciously or contrary to the public announcements of the Bar Association”.

“The fact that the Bar Association is prepared to throw onto the selection committee responsibility for the Bar’s failure to make or clearly express its policy on silk selection, or the ambiguity in its own documents to achieve reversals of declared ­policy, or its failure to be actively ­involved in resolving manifest miscarriages of the process, shows a collapse of governance, principle and effective leadership,” their letter says.

“It is unacceptable to then hide behind the Bar Association’s status as a voluntary ­association, as if it is a bowling club, to avoid censure.

“The Bar acts within the ­context of the administration of justice. It should be delivering much more to its members and stakeholders. Regrettably, in this context, it is not.”

The silks behind the letter seek “an immediate remedy to this embarrassment” and state that eligibility for silk should be related to excellence in the pursuit of all the activities of modern legal practice “and therefore should include excellence in ADR practice”.

This letter, coupled with the reformed definition of barristers’ work, means the NSW Bar Council can no longer sit on its hands and do nothing. The ­injustice to its own members must stop.

Chris Merritt engaged in an online discussion earlier today. Read his responses in the comments section below.