La Trobe Law School Academics Present at the Australian National Law Reform Conference

Three La Trobe Law School academics were invited as leading scholars in their field of research to speak at the inaugural Australian National Law Reform Conference on 14 – 15 April 2016: Professor Paula Baron (expertise – legal practice), Professor Mary Anne Noone (expertise – legal practice) and Dr Ann Wardrop (banking and finance law) .

The inaugural Australian National Law Reform Conference was designed to bring together leading legal scholars and promising early career researchers in Australia to consider what are the challenges in their particular area of expertise and to consider what the legal and policy responses should be and why.

Abstracts

Creating the Virtuous Financial Institution: Looking Beyond Conventional Regulatory Methods

by Dr Ann Wardrop, Dr David Wishart and Dr Marilyn McMahon

Misconduct and unethical behavior in the financial services industry is a critical and pressing problem. In addition to causing significant losses to investors and vulnerable consumers, misconduct can become a prudential issue – ultimately threatening the stability of the financial system. Australia has or is developing laws aimed at various types of financial services misconduct, for example, the conflicted remuneration legislation, and the proposed financial product design and distribution regulation. However, there is evidence that poor culture within financial institutions can render those laws ineffective. This paper willl discuss a regulatory method that looks beyond the conventional toolbox traditionally employed by supervisory bodies of the financial industry. Developed by the Netherlands Central Bank and implemented by it for over five years, the method involves, among other things, the deployment of supervisors into financial institutions who are trained in social and organisational psychology to observe the inner workings of the board of directors and other areas of the firm. While this involves significant intrusion by a supervisory body into the internal workings of the firm, the intractable problem of bad culture within financial institutions may justify such a radical tactic. This paper explores the implications of such a method being introduced in Australia from both a legal and theoretical perspective.

Lawyer Well-Being: Putting Gender on the Agenda

By Professor Paula Baron

The lawyer well-being discourse in Australia has developed rapidly since 2009. Discussions about lawyer depression, anxiety, substance abuse and suicide have become increasingly open, and much valuable work has been done by the academy and by the profession to highlight the problems and offer potential solutions to the problems of lawyer well-being.

But in this growing body of wellness discourse, there has been very little acknowledgment of the gendered dimensions of lawyer well-being. Our discussions have remained firmly ‘gender-neutral’. This is in contrast with the wellness literature in medicine where there has been some good work around well-being and gender, particularly in regard to surgeons.

This presentation seeks to promote a conversation about the gendered dimensions of lawyer well-being. It argues that if we are serious about addressing the issues of wellness that are so problematic for our profession, gendering – in terms of lawyering, law firms and well-being itself – must be acknowledged and addressed. To do so, however, will pose a challenge to existing legal workplace cultures. Can the wellness debates be the catalyst for what many consider to be long-overdue cultural change in the legal profession?

Wearing two Hats: Lawyers who act as Mediators

By Professor Mary Anne Noone

In Australia, many lawyers (both barristers and solicitors) train to be mediators and commonly act as mediators. Mediation is an integral aspect of modern civil litigation. Professional legal bodies promote the use of lawyers as mediators claiming that “with their skills, training and experience solicitors are ideally placed to be mediators”.

Lawyers who act as mediators are wearing two hats: officer of the court and neutral third party. These dual identities pose significant challenges for lawyers/mediators and the legal profession more broadly. How can the various professional responsibilities be reconciled?

In the context of an emergent discussion about the ethics of mediators and concern for the impact of mediation on public interest law practice, the following issues warrant ongoing examination: Is there an expectation that the lawyer as mediator will be more “fair and just”? Should a lawyer/mediator give legal advice during mediation, particularly, if a party is sacrificing clear legal entitlements of which they are unaware? Should a lawyer/mediator be concerned about systemic injustice? How can a lawyer/mediator ensure mediation enhances, not limits, access to justice? Elements of ‘best practice’ for lawyers who act as mediators are proposed.