Bar Marginalising Mediators

This is the name of an article that appeared in The Australian’s Legal Affairs section on Friday 22 July 2016.

Every Barrister when they start out, at least for a fleeting moment, aspire to the exalted rank of Silk. They yearn for those post-nominals, QC (Queens Counsel). Like the armed forces have the SAS, the law has the QC.

Perhaps the ambition is so fierce that they dream of a legal textbook bearing their name, the QC post-nominal and authoritatively on the inside cover ‘One of Her Majesty’s Counsel Learned in Law & Equity’.

Then reality takes a bite. Those post-nominals demand an increase in fees that price the poor QC out of the market, and they find themselves less busy. Maybe they are not elite enough to be a QC (not every Rugby player can play for the Wallabies or the All Blacks). Maybe they just do not want the post-nominals (there are many ‘Junior’ barristers on far more money than QC’s with heavier and higher profile caseloads).

On application by any interested Barrister, it is generally up to the State Bar Council and the State Chief Justice as to whom trades their cotton robe for a ‘silk’ robe – hence the name Silk.

The successful ones, and the soon-to-be-successful one’s chortle amongst each other ‘How many times have you been to the High Court?’, ‘Who is your favourite IP Judge?’, or ‘does your name appear in the CLR?’

Apparently though they don’t say ‘How’s your mediation practice going?’ At least this is the case in so far as Sydney Barrister Mary Walker is concerned.

In Walker v New South Wales Bar Association [2016] FCA 799 the protocol for appointing Silk was challenged, unsuccessfully, by Ms Waker. Justice Besanko’s judgment describes her complaint:

  1. This is an application by Ms Mary Walker for declarations and an order pursuant to s 233 of the Corporations Act 2001 (Cth) against the New South Wales Bar Association (“the Association”), Ms Jane Needham SC and Mr Noel Hutley SC.
  2. The applicant practises as a barrister predominantly in New South Wales and she is and has been a member of the Association since 20 May 1988. For some time prior to 2014, the applicant’s practice has been wholly or substantially comprised of the conduct of mediations, as a mediator. ..She is a member of the Outer Bar. …
  3. In 2014 and again in 2015, the applicant applied for an appointment as Senior Counsel. On each occasion her application for Senior Counsel was unsuccessful. An unsuccessful applicant is not entitled to reasons for the refusal of his or her application. Under the Senior Counsel Protocol, an unsuccessful applicant may discuss their application with the President. The applicant exercised that option. As to her application in 2014, the applicant was told that her application was not considered because the Senior Counsel Selection Committee determined that it was not within the Protocol. As to her application in 2015, the applicant was told that her application was considered on its merits and that she did not have sufficient support. She was told that the Senior Counsel Selection Committee deferred consideration of the meaning of “practising advocate” (emphasis added) in the 2015 Senior Counsel Protocol.


The judgment goes on to state that key criteria for the selection of Silks are:

During this time it is expected (without being exhaustive) that the applicants’ practice will demonstrate some or all of the following:
(i) experience in arguing cases on appeal;
(ii) a position of leadership in a specialist jurisdiction;
(iii) experience in conducting major cases in which the other party is represented by Senior Counsel;
(iv) experience in conducting cases with a junior;
(v) considerable practice in giving advice in specialist fields of law;
(vi) experience and practice in alternative dispute resolution, including arbitrations and mediations; and
(vii) experience in sitting on courts or tribunals.

Applying impious and simplifying hands to His Honour’s reasons it seems that only one of the enumerated heads goes to Mediation. Therefore, a successful applicant for Silk needs to be arguing cases on their hind legs in Courts (and Superior Courts at that).

Again, our summary can only be described as a chaotic deluge in a tempest of legal wisdom, Ms Walker was not arguing cases in Court and therefore was ‘knocked back’ for Silk on two occasions. (Ms Walker had appeared in the High Court before turning to mediation).

The point of The Australian article is that mediators are ‘an entrenched part of the civil litigation system, and encouraged by the Court’ to quote the Chief Justice of Victoria. Mediators bring about less expensive and timelier solutions and free up judges for hearing weightier and more difficult trials and appeals.

Also the point of The Australian article is that the best barristers may be dissuaded from becoming mediators if that presents as an obstacle to the prized virtue of Silk. Maybe, we are not sure if the former Chief Justice of NSW, Sir Laurence Street, now in his 90th year and Australia’s foremost mediator would agree.

At Aylward Game, we encourage mediation over litigation.

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Article Source: Marginalising Mediators