Women and ADR

Alternative dispute resolution, or ‘ADR’, is defined by the National Alternative Dispute Resolution Advisory Council as: … an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance. A broad range of ADR processes are used in legal practice contexts, including, for example, arbitration, conciliation, mediation, negotiation, conferencing, case appraisal and neutral evaluation. Hybrid processes are also used, such as med-arb in which the practitioner starts by using mediation, and then shifts to using arbitration. ADR processes generally fall into one of three general categories: facilitative, advisory or determinative. In a facilitative process, the ADR practitioner has the role of assisting the parties to reach a mutually agreeable outcome to the dispute by helping them to identify the issues in dispute, and to develop a range of options for resolving the dispute. Mediation and facilitated negotiation are examples of facilitative processes. ADR processes that are advisory involve the practitioner appraising the dispute, providing advice as to the facts of the dispute, the law and then, in some cases, articulating possible or appropriate outcomes and how they might be achieved. Case appraisal and neutral evaluation are examples of advisory processes. In a determinative ADR process, the practitioner evaluates the dispute (which may include the hearing of formal evidence from the parties) and makes a determination. Arbitration is an example of a determinative ADR process. The use of ADR processes has increased significantly in recent years. Indeed, in a range of contemporary legal contexts the use of an ADR process is now required before a party is able to file a matter in court. For example, Juliet Behrens discusses in Chapter 11 of this book how the Family Law Act 1975 (Cth) now effectively mandates attendance at pre-filing family dispute resolution in parenting disputes. At the state level, in Queensland, for example, attendance at a conciliation conference can be required in anti-discrimination matters, and is encouraged in residential tenancy matters, and in personal injuries matters the parties must attend a preliminary compulsory conference. Certain ADR processes are used more commonly in the resolution of particular disputes. For example, in family law contexts, mediation and conciliation are generally used because they provide the parties with flexibility in terms of process and outcome while still ensuring that the negotiations occur in a positive, structured and facilitated framework. In commercial contexts, arbitration and neutral evaluation are often used because they can provide the parties with a determination of the dispute that is factually and legally principled, but which is also private and more timely than if the parties went to court. Women, as legal personalities and citizens of society, can find themselves involved in any sort of legal dispute, and therefore all forms of ADR are relevant to women. Perhaps most commonly, however, women come into contact with facilitative ADR processes. For example, through involvement in family law disputes women will encounter family dispute resolution processes, such as mediation. In this chapter, therefore, the focus is on facilitative ADR processes and, particularly, issues for women in terms of their participation in such processes. The aim of this chapter is to provide legal practitioners with an understanding of issues for women in ADR to inform your approach to representing women clients in such processes, and to guide you in preparing women clients for their participation in ADR. The chapter begins with a consideration of the ways in which facilitative ADR processes are positive for women participants. Next, some of the disadvantages for women in ADR are explored. Finally, the chapter offers ways in which legal practitioners can effectively prepare women clients for participation in ADR. Before embarking on a discussion of issues for women in ADR, it is important to acknowledge that women’s experiences in these dispute resolution environments, whilst often sharing commonalities, are diverse and informed by a range of factors specific to each individual woman; for example, her race or socio-economic background. This discussion, therefore, addresses some common issues for women in ADR that are fundamentally gender based. It must be noted, however, that providing advice to women clients about participating in ADR processes requires legal practitioners to have a very good understanding of the client as an individual, and her particular needs and interests. Some sources of diversity are discussed in Chapters 13, 14 and 15.

Representing clients from courtroom to mediation settings : switching hats between adversarial advocacy and dispute resolution advocacy

In the vast majority of cases legal representation in mediation can provide many advantages for clients. However, in some, progress can be thwarted when lawyers do not understand the goals of the mediation process and their dispute resolution advocacy role. This article will explore some of the similarities and differences between the knowledge and skills that lawyers can draw upon when representing clients in adversarial court hearings as compared with non-adversarial settings, such as in mediations. One key distinction is the different approaches that legal representatives can use to effectively act in the best interests of clients. This article will highlight how an appreciation of such distinctions can assist lawyers to “switch” hats between their adversarial and non-adversarial roles. In particular, an understanding that the duty to promote the best interests of clients in mediation is consistent with a collaborative and problem-solving approach can greatly assist in the resolution process.

Duty to the court and the administration of justice : some examples, implications and clarifications

No liberal democracy can survive without popular trust in its judicial system. The legal profession and the judiciary enjoy a level of independence and autonomy from the executive that makes them both powerful and privileged. A UNIQUE AND ORGANIC DUTY: So long as the courts are seen to fulfil their duty to guard against encroachments by the executive on the freedoms and rights of individual citizens with integrity and credibility, they maintain enough public support to retain their normative authority. But support for those with power and privilege is easily undermined. It is contingent upon trust. Lawyers who breach that trust in ways that go to the heart of the legal system ought to expect to be made examples of and to suffer severe penalties. The good news is that the sorts of breach discussed here should be neither difficult to anticipate nor to avoid – in theory. In practice, smart and honest lawyers sometimes fall foul of these duties for all sorts of understandable (if not condonable) reasons. Law does not get practised in a social or cultural vacuum. Lawyers are people, and people have weaknesses, failings and stresses...

Union power in retail: Contrasting cases in Australia and New Zealand

Retail employees are the prototypical vulnerable, low-paid employees, and for that reason unionism and its benefits, such as collective bargaining, provide important social protection. However, the reasons that make employees vulnerable also reduce union power though that is not to say that retail unions lack agency. This article analyses the power resources and their deployment in the respective retail unions in Australia and New Zealand. The two unions’ strategies are quite different, and provide interesting contrasts in approaches and ideology. The implications for theory are that ideology matters with respect to union strategy (and should be attended to more thoroughly in studies of union renewal) and – as others have also argued – the wider institutional context has a very significant influence on outcomes for unions and their members. The implication for practice, therefore, is that both workplace and extra-workplace strategies in the political and other arenas remain central for the low-paid.

Web crippling studies of Duragal channel sections – ETF and ITF load cases

Cold-formed steel members have many advantages over hot-rolled steel members. However, they are susceptible to various buckling modes at stresses below the yield stress of the member because of their relatively high width-to-thickness ratio. Web crippling is one of the failure modes that can occur when the members are subjected to transverse high concentrated loadings and/or reactions. The four common loading conditions are the end-one-flange (EOF), interior-one-flange (IOF), end-two-flange (ETF) and interior-two-flange (ITF) loadings. Recently a new test method has been proposed by AISI to obtain the web crippling capacities under these four loading conditions. Using this test method 38 tests were conducted in this research to investigate the web crippling behaviour and strength of channel beams under ETF and ITF cases. Unlipped channel sections having a nominal yield stress of 450 MPa were tested with different web slenderness and bearing lengths. The flanges of these channel sections were not fastened to the supports. In this research the suitability of the current design rules in AS/NZS 4600 and the AISI S100 Specification for unlipped channels subject to web crippling was investigated, and suitable modifications were proposed where necessary. In addition to this, a new design rule was proposed based on the direct strength method to predict the web crippling capacities of tested beams. This paper presents the details of this experimental study and the results.

Experimental studies on web crippling behaviour of hollow flange channel beams under two flange load cases

This paper presents the details of an experimental study of a cold-formed steel hollow flange channel beam known as LiteSteel beam (LSB) subject to web crippling under End Two Flange (ETF) and Interior Two Flange (ITF) load cases. The LSB sections with two rectangular hollow flanges are made using a simultaneous cold-forming and electric resistance welding process. Due to the geometry of the LSB, and its unique residual stress characteristics and initial geometric imperfections, much of the existing research for common cold-formed steel sections is not directly applicable to LSB. Experimental and numerical studies have been carried out to evaluate the behaviour and design of LSBs subject to pure bending, predominant shear and combined actions. To date, however, no investigation has been conducted on the web crippling behaviour and strength of LSB sections. Hence an experimental study was conducted to investigate the web crippling behaviour and capacities of LSBs. Twenty-eight web crippling tests were conducted under ETF and ITF load cases, and the ultimate web crippling capacities were compared with the predictions from the design equations in AS/NZS 4600 and AISI S100. This comparison showed that AS/NZS 4600 and AISI S100 web crippling design equations are unconservative for LSB sections under ETF and ITF load cases. Hence new equations were proposed to determine the web crippling capacities of LSBs based on experimental results. Suitable design rules were also developed under the direct strength method (DSM) format.

Fine-needle aspiration cytology of Merkel cell carcinoma-A review of 69 cases

Background This study reviewed the clinical presentation, cytologic findings and the immunophenotype of 69 Merkel Cell Carcinoma (MCC) cases sampled by FNA. Methods Demographic and clinical data, the cytology findings and results of ancillary testing were reviewed. Results Median patient age was 78 years (37 – 104) with a 1:1.8 female to male ratio. The most common FNA sites sampled included lymph nodes in the neck, the axillary region, the inguinal region and the parotid gland. Most patients had a history of MCC (68%) &/or non-MCC malignancy (70%). The common cytologic pattern was a cellular smear with malignant cells arranged in a dispersed pattern with variable numbers of disorganised groups of cells. Cytoplasm was scant or absent and nuclei showed mild to moderate anisokaryosis, stippled chromatin, inconspicuous nucleoli and nuclear molding. Numerous apoptotic bodies were often present. Cell block samples (28 cases) were usually positive for cytokeratins in a perinuclear dot pattern, including 88% of cases with CK20 positivity. CD56 was the most sensitive (95%) neuroendocrine marker on cell blocks and was also positive with flow cytometry in 9 cases tested. Conclusions MCC is most commonly seen in FNA specimens from the head and neck of elderly patients, often with a history of previous skin lesions. Occasional cases present in younger patients and some may be mistaken for other round blue cell tumors, such as lymphoma. CD 56 may be a useful marker in cell block preparations and in flow cytometric analysis of MCC.

Withholding and withdrawing life-sustaining treatment in a patient's best interests : Australian judicial deliberations

•Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who lack capacity are rare but challenging. Judicial resolution may be needed in some of these cases. •A central concept for judicial (and clinical) decision making in this area is a patient's “best interests”. Yet what this term means is contested. •There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests. •Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions.

Occupational Health and Safety, Courts and Crime: the legal construction of occupational health and safety offences in Victoria

This book reports on an empirically-based study of the manner in which the Magistrates' Courts in Victoria, construct occupational health and safety (OHS) issues when hearing prosecutions for offences under the Victorian OHS legislation. Prosecution has always been a controversial element in the enforcement armoury of OHS regulators, but at the same time it has long been argued that the low level of fines imposed by courts has had an important chilling effect on the OHS inspectorate's enforcement approaches, and on the impact of OHS legislation. Using a range of empirical research methods, including three samples of OHS prosecutions carried out in the Victorian Magistrates' Courts, Professor Johnstone shows how courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court. He argues that OHS offences are constructed by focusing on "events", in most cases incidents resulting in injury or death. This "event-focus" ensures that the attention of the parties is drawn to the details of the incident, and away from the broader context of the event. During the court-based sentencing process defence counsel is able to adopt a range of techniques which isolate the incident from its micro and macro contexts, thereby individualising and decontextualising the incident.

Safety, courts and crime: occupational safety and health prosecutions in the Magistrates' courts

This paper reports on an empirically based study of occupational safety and health prosecutions in the Magistrates' courts in the State of Victoria, Australia. It examines the way in which the courts construct occupational safety and health issues during prosecutions against alleged offenders, and then theorises the role of the criminal law in health and safety regulation. The paper argues that courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping occupational safety and health issues during the prosecution process, both pre-trial and in court. An analysis of the pattern of investigation of health and safety offences shows that they are constructed by focusing on 'events', in most cases incidents resulting in injury or death. This 'event focus' ensures that the attention of the parties is drawn to the details of the incident and away from the broader context of the event. This broader context includes the way in which work is organised at the workplace and the quality of occupational safety and health management (the micro context), and the pressures within capitalist production systems for occupational safety and health to be subordinated to production imperatives (the macro context). In particular, during the court-based sentencing process, defence counsel is able to adopt a range of 'isolation' techniques that isolate the incident from its micro and macro contexts, thereby individualising and decontextualising the incident. The paper concludes that the legal system plays a key role in decontextualising and individualising health and safety issues, and that this process is part of the 'architecture' of the legal system, and a direct consequence of the 'form of law'.

Better half-dead than read? The Mezzomorto cases and their implications for literary culture in the 1930s

This article focusses on the two libel cases arising from Brian Penton's review of Vivian Crockett's novel Mezzomorto for the Bulletin in 1934, viewing them as points of entry into Australian literary politics in the 1930s, and as windows on to one of the most enduring and interesting feuds in Australian literary culture, that between P.R. 'Inky' Stephensen, self-styled 'Bunyip Critic,' and Brian Penton, arch exponent of 'destructive criticism' and scourge of parochial pretension. The cases are particularly interesting for what they reveal about the evolving positions of two influential figures in Australian writing of the 1930s and 1940s. They also play in to contemporary debates about the state and status of 'literature' in Australia. And while Penton's biographer Patrick Buckridge avers that the cases did not impact on any of the larger contemporary literary issues (meaning censorship and free speech), a case may be made for the significance of the libel actions in the context of attempts to establish an industrial and cultural presence for a diverse range of Australian writing.

Prosecution of maritime pirates : the national court is dead—long live the national court

Piracy is one of the main maritime security concerns in the contemporary world. The number of piracy incidents is increasing rapidly, which is highly problematic for maritime security. Although international law provides universal jurisdiction for the prosecution of maritime pirates, the actual number of prosecutions is alarmingly low compared to the number of incidents of piracy. Despite many states becoming parties to the relevant international conventions, they are reluctant to establish the necessary legal and institutional frameworks at the national level for the prosecution of pirates. The growing incidences of piracy and the consequential problems associated with prosecuting pirates have created doubts about the adequacy of the current international legal system, which is fully dependent on national courts for the prosecution of pirates. This article examines the possible ways for ensuring the effective prosecution of pirates. Contrary to the different proposals forwarded by researchers in the wake of Somali piracy for the establishment of international judicial institutions for the prosecution of pirates, this article argues that the operationalization of national courts through the proper implementation of relevant international legal instruments within domestic legal systems is the most viable solution. However, this article submits that the operationalization of national courts will not be very successful following the altruistic model of universal adjudicative jurisdiction. A state may enact legislation implementing universal jurisdiction but will not be very interested in prosecuting a pirate in its national court if it has no relation with the piratical incident. Rather, it will be successful if the global community seriously implement the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention), which obligates the states that have some connection with a piratical incident to prosecute pirates in their national courts.

Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Offending behaviour and mental illness : characteristics of a mental health court liaison service

This paper begins with a brief review of recent literature about relationships between offending behaviour and mental illness, classifying studies by the settings within which they occurred. The establishment and role of a mental health court liaison (MHCL) service is then described, together with findings from a 3-year service audit, including an examination of relationships between clients’ characteristics and offence profiles, and comparisons with regional offence data. During the audit period, 971 clients (767 males, 204 females) were referred to the service, comprising 1139 service episodes, 35.5% of which involved a comorbid substance use diagnosis. The pattern of offences for MHCL clients was reasonably similar to the regional offence data, except that among MHCL clients there were proportionately more offences against justice procedures (e.g., breaches of apprehended violence orders [AVOs]) and fewer driving offences and “other offences”. Additionally, male MHCL clients had proportionately more malicious damage and robbery offences and lower rates of offensive behaviour and drug offences. A range of service and research issues is also discussed. Overall, the new service appears to have forged more effective links between the mental health and criminal justice systems.

Antisocial personality disorder and therapeutic justice court programs

It has become commonplace for courts to supervise an offender as part of the sentencing process. Many of them have Anti Social Personality Disorder (ASPD). The focus of this article is how the work of specialist and/or problem solving courts can be informed by the insights of the psychology profession into the best practice in the treatment and management of people with ASPD. It is a legitimate purpose of legal work to consider and improve the well-being of the participants in the legal process. Programs designed specifically to deal with those with ASPD could be incorporated into existing Drug Courts, or implemented separately by courts to aid with reforming offenders with ASPD and in managing the re-entry of offenders into the community as part of their sentence. For the success of this initiative on the part of the court, ASPD will need to be specifically diagnosed and treated. Close co-operation between courts and psychologists is required to improve the effectiveness of court programs to treat people with ASPD and to evaluate their success.