Over the weekend, Australia's Attorney-General Nicola Roxon spoke about the government's desire for more alternative dispute resolution, pointing to new legislation requiring lawyers to give clients information about alternatives to going to court, and also said that the government was considering changing court fees to "send pricing signals that the courts should not be the first port of call for resolving issues".
Roxon was looking at how the courts charged, to better reflect the costs associated with lengthy, resource-intensive matters.
"Unfortunately, many of us can name too many cases that have dragged on ad nauseam, wasting valuable court resources."
"Both governments and lawyers need to discourage matters dragging out, by giving parties the knowledge and opportunity to take 'legal off ramps' wherever possible. Our changes to court fees will also better reflect the capacity of court users, such as big corporations, to contribute more to the cost of courts," she said.
Roxon used the tobacco industry as an example, but it's obvious that a lot of disputes in the technology space could be solved in mediation. The judge in the Australian Apple-Samsung case, Justice Annabelle Bennett, said clearly at the opening of the case that she thought it was ridiculous that the companies hadn't worked out their problems over patent infringements outside of court, and asked the two tech giants to enlighten her as to why she shouldn't order them to mediation.
Currently, there are patent cases between Samsung and Apple being held in other parts of the world, including the US, Germany and Japan. Just one courtroom brawl isn't enough for these two.
It's also obvious to me that the iiNet and Australian Federation Against Copyright Theft's case, which alleged that iiNet had authorised its users' copyright infringement, could have been solved out of court, precedent or not, if the parties had been willing to compromise. iiNet came out on top, after the case went all the way to the high court. But just because iiNet won, doesn't mean that AFACT can't simply change the way it issues infringement notices to iiNet and other parties. So where has this case really led us?
But the most obvious thing of all is that some companies don't want to compromise or come to sensible solutions. They will rigidly hold onto their point of view, desiring to slash and burn, using the courts to bring as much competitive damage to their rivals as possible — mainly through delay and uncertainty, than from the decision itself.
That's why I don't think that a change in fees will have any effect, despite Roxon being "hopeful that this adjustment will help break the habit for those that rely on the courts as a forum of first resort". It's the problem of a "winner takes all mentality" that won't be stopped by some piddly legal fee hike being introduced. These behemoths have enough money to buy a small country, and they'll shell out for court fees, however exorbitant.
If the government wants to get these disputes out of its courts, it will have to think harder. After all, as Roxon said, "'I'll see you in court,' sounds so much more exciting than, 'I'll see you in alternative dispute resolution'."