Mediation ethics in Australia : a case for rethinking the foundational paradigm

In contemporary Western society, including Australia, professional mediation practice has developed with a specifically defined foundational approach - a problem-solving, facilitative method, in which the mediator's intervention is centred on providing the parties with a series of formal steps to assist their communication and to steer them towards a self-determined and mutually agreeable resolution of the issues in dispute. Facilitative mediation developed, in part, as a response to the adversarial system of law and justice. In that system the parties are said to lose control of their dispute, and a decision is imposed on them which invariably puts one party in a losing position. Facilitative mediation has offered an alternative to this inevitable outcome by offering the parties a democratic, cost-effective, party-centred, empowering, interests-based and principled option for resolving their dispute.

Why ADR must be a mandatory subject in the law degree - the profession

The Australian legal profession, as well as the content and pedagogy of legal education across Australia, are steeped in tradition and conservatism. Indeed, the legal profession and our institutions of legal education are in a relationship of mutual influence which leaves the way we teach law resistant to change. There has traditionally been pushback against the notion that dispute resolution should have a place amongst black letter law subjects in the legal curriculum. This paper argues that this position cannot be maintained in the modern legal climate. We challenge legal education orthodoxy and promote NADRAC’s position that alternative dispute resolution should be a compulsory, stand alone subject in the law degree. We put forward ten simple arguments as to why every law student should be exposed to a semester long course of DR instruction.

Why ADR must be a mandatory subject in the law degree - the academy

The profession of law is deeply steeped in tradition and conservatism. The content and pedagogy employed in law faculties across Australia is similarly steeped in tradition and conservatism. Indeed, the practice of law and our institutions of legal education are in a relationship of mutual influence; a dénouement which preserves the best aspects of our common law legal system, but also leaves the way we educate, practice, and think about the role of law, resistant to change. In this article, we lay down a challenge to legal education orthodoxy and a call to arms for legal academic progressivists. It is our simple argument that alternative dispute resolution should be a compulsory, stand alone subject in the law degree. There has been traditional pushback against the notion that alternative dispute resolution should have a place amongst black letter law subjects in the legal curriculum. This position cannot be maintained in the modern day legal climate. We put forward ten simple arguments as to why every law student should be exposed to a semester long course of ADR instruction. With respect to relationships of mutual influence, whether legal education should assimilate the practise of law, or shape the practise of law makes no difference here. Both views necessitate the inclusion of ADR as a compulsory subject in the law degree.

Settlement outcomes in sexual harassment complaints

This article examines the dispute resolution process of conciliation through a detailed study of Australian workplace sexual harassment complaints. It links two data sets: settlement details of a census of conciliated complaints lodged under all federal, State, and Territory anti-discrimination laws in a six-month period; and interviews undertaken with 71 professionals who have extensive, first-hand experience of conciliation processes in anti-discrimination jurisdictions. The article provides a critique of the effectiveness of conciliation as a form of ADR within the individualised constraints of current anti-discrimination laws.

Consumer perceptions of trade show effectiveness : scale development and validation within a B2C context

Purpose This paper develops and estimates a model to measure consumer perceptions of trade show effectiveness. Design/methodology/approach Data were collected at three separate B2C trade shows. Study 1 (n=47) involved field interviews with data subjected to qualitative item generation and content analysis. Study 2 data (n=147) were subjected to exploratory factor analysis and item-total correlation to identify a preliminary factor structure for the effectiveness construct and to test for reliability. In Study 3 (n=592), confirmatory factor analysis was undertaken to more rigorously test the factor structure and generalise across industries. Validity testing was also performed. Findings A three-dimensional factor structure for assessing consumer visitors’ perceptions of trade show effectiveness was produced incorporating research, operational, and entertainment components. Research limitations/implications Data were collected in Australia and results may not generalise across cultural boundaries. Practical implications The resulting measurement model may be used as a reliable post-hoc diagnostic tool to identify areas of trade show effectiveness where specific performance improvements are needed. Results indicate that exhibitors and organisers of B2C trade shows should consider effectiveness as a multidimensional phenomenon with entertainment, product / industry research, and the facilitation of purchase decision-making processes and problem resolution being key objectives for consumer attendees. These elements of effectiveness should each be addressed by exhibitors and organisers in planning their displays and events. Originality/value This is the first study to provide an empirically valid model for assessing trade show effectiveness from the consumer visitor’s perspective.

Isolation of nontuberculous mycobacteria (NTM) from household water and shower aerosols in patients with pulmonary disease caused by NTM

It has been postulated that susceptible individuals may acquire infection with nontuberculous mycobacteria (NTM) from water and aerosol exposure. This study examined household water and shower aerosols of patients with NTM pulmonary disease. The mycobacteria isolated from clinical samples from 20 patients included M. avium (5 patients), M. intracellulare (12 patients), M. abscessus (7 patients), M. gordonae (1 patient), M. lentiflavum (1 patient), M. fortuitum (1 patient), M. peregrinum (1 patient), M. chelonae (1 patient), M. triplex (1 patient), and M. kansasii (1 patient). One-liter water samples and swabs were collected from all taps, and swimming pools or rainwater tanks. Shower aerosols were sampled using Andersen six-stage cascade impactors. For a subgroup of patients, real-time PCR was performed and high-resolution melt profiles were compared to those of ATCC control strains. Pathogenic mycobacteria were isolated from 19 homes. Species identified in the home matched that found in the patient in seven (35%) cases: M. abscessus (3 cases), M. avium (1 case), M. gordonae (1 case), M. lentiflavum (1 case), and M. kansasii (1 case). In an additional patient with M. abscessus infection, this species was isolated from potable water supplying her home. NTM grown from aerosols included M. abscessus (3 homes), M. gordonae (2 homes), M. kansasii (1 home), M. fortuitum complex (4 homes), M. mucogenicum (1 home), and M. wolinskyi (1 home). NTM causing human disease can be isolated from household water and aerosols. The evidence appears strongest for M. avium, M. kansasii, M. lentiflavum, and M. abscessus. Despite a predominance of disease due to M. intracellulare, we found no evidence for acquisition of infection from household water for this species.

Development of gas sensing technology for ground and airborne applications powered by solar energy : methodology and experimental results

Monitoring gases for environmental, industrial and agricultural fields is a demanding task that requires long periods of observation, large quantity of sensors, data management, high temporal and spatial resolution, long term stability, recalibration procedures, computational resources, and energy availability. Wireless Sensor Networks (WSNs) and Unmanned Aerial Vehicles (UAVs) are currently representing the best alternative to monitor large, remote, and difficult access areas, as these technologies have the possibility of carrying specialised gas sensing systems, and offer the possibility of geo-located and time stamp samples. However, these technologies are not fully functional for scientific and commercial applications as their development and availability is limited by a number of factors: the cost of sensors required to cover large areas, their stability over long periods, their power consumption, and the weight of the system to be used on small UAVs. Energy availability is a serious challenge when WSN are deployed in remote areas with difficult access to the grid, while small UAVs are limited by the energy in their reservoir tank or batteries. Another important challenge is the management of data produced by the sensor nodes, requiring large amount of resources to be stored, analysed and displayed after long periods of operation. In response to these challenges, this research proposes the following solutions aiming to improve the availability and development of these technologies for gas sensing monitoring: first, the integration of WSNs and UAVs for environmental gas sensing in order to monitor large volumes at ground and aerial levels with a minimum of sensor nodes for an effective 3D monitoring; second, the use of solar energy as a main power source to allow continuous monitoring; and lastly, the creation of a data management platform to store, analyse and share the information with operators and external users. The principal outcomes of this research are the creation of a gas sensing system suitable for monitoring any kind of gas, which has been installed and tested on CH4 and CO2 in a sensor network (WSN) and on a UAV. The use of the same gas sensing system in a WSN and a UAV reduces significantly the complexity and cost of the application as it allows: a) the standardisation of the signal acquisition and data processing, thereby reducing the required computational resources; b) the standardisation of calibration and operational procedures, reducing systematic errors and complexity; c) the reduction of the weight and energy consumption, leading to an improved power management and weight balance in the case of UAVs; d) the simplification of the sensor node architecture, which is easily replicated in all the nodes. I evaluated two different sensor modules by laboratory, bench, and field tests: a non-dispersive infrared module (NDIR) and a metal-oxide resistive nano-sensor module (MOX nano-sensor). The tests revealed advantages and disadvantages of the two modules when used for static nodes at the ground level and mobile nodes on-board a UAV. Commercial NDIR modules for CO2 have been successfully tested and evaluated in the WSN and on board of the UAV. Their advantage is the precision and stability, but their application is limited to a few gases. The advantages of the MOX nano-sensors are the small size, low weight, low power consumption and their sensitivity to a broad range of gases. However, selectivity is still a concern that needs to be addressed with further studies. An electronic board to interface sensors in a large range of resistivity was successfully designed, created and adapted to operate on ground nodes and on-board UAV. The WSN and UAV created were powered with solar energy in order to facilitate outdoor deployment, data collection and continuous monitoring over large and remote volumes. The gas sensing, solar power, transmission and data management systems of the WSN and UAV were fully evaluated by laboratory, bench and field testing. The methodology created to design, developed, integrate and test these systems was extensively described and experimentally validated. The sampling and transmission capabilities of the WSN and UAV were successfully tested in an emulated mission involving the detection and measurement of CO2 concentrations in a field coming from a contaminant source; the data collected during the mission was transmitted in real time to a central node for data analysis and 3D mapping of the target gas. The major outcome of this research is the accomplishment of the first flight mission, never reported before in the literature, of a solar powered UAV equipped with a CO2 sensing system in conjunction with a network of ground sensor nodes for an effective 3D monitoring of the target gas. A data management platform was created using an external internet server, which manages, stores, and shares the data collected in two web pages, showing statistics and static graph images for internal and external users as requested. The system was bench tested with real data produced by the sensor nodes and the architecture of the platform was widely described and illustrated in order to provide guidance and support on how to replicate the system. In conclusion, the overall results of the project provide guidance on how to create a gas sensing system integrating WSNs and UAVs, how to power the system with solar energy and manage the data produced by the sensor nodes. This system can be used in a wide range of outdoor applications, especially in agriculture, bushfires, mining studies, zoology, and botanical studies opening the way to an ubiquitous low cost environmental monitoring, which may help to decrease our carbon footprint and to improve the health of the planet.

Equity in Australian estate litigation

Equitable claims are increasingly arising in Australian estate litigation, particularly in conjunction with family provision applications. Since the leading decision in Bridgewater v Leahy, in addition to undue influence and unconscionable bargain claims, actions based on equitable estoppel, constructive and resulting trusts, breach of fiduciary duty, and breach of legislative duties that mirror equitable obligations are increasingly being brought in contemporary estate litigation. Such litigation often raises challenging issues for claimants, including evidentiary hurdles and allegations of undue delay, especially when claims are made post-mortem in relation to inter vivos dealings with property. Accordingly, solicitors need to ensure that they fully understand the nature and potential application of equitable claims in estate litigation, or face the prospect of incurring liability to clients for professional negligence. This article explores recent trends in Australian estate litigation involving equitable claims.

Lawyers behaving badly in mediations : lessons for legal educators

This article will discuss some real life case examples of what will be termed “lawyers behaving badly” where it will be argued that legal representatives have not performed as effectively as they could have in mediation settings. These instances of “lawyer misbehaviour” will be grouped under several broad headings: the Process Thwarter, the Zealous Adversarial Advocate, the Misguided Advisor, the Distributive Bargainer, the Passive Advocate, and the Legal Takeover. Reflecting on these situations will provide guidance to legal educators as to the specific areas of dispute resolution knowledge and skills that future lawyers need to learn and develop.

Comparison of nanostructures obtained from galvanic replacement in water and an ionic liquid for applications in electrocatalysis and SERS

We demonstrate potential applications for unusual dendrite like Au–Ag alloy nanoparticles formed via a galvanic replacement reaction in the ionic liquid [BMIM][BF4]. In comparison to Au–Ag alloy nanoshells synthesised via a similar reaction in water, the unusual branched structure of the dendritic materials led to increased electrocatalytic activity for the oxidation of both formaldehyde and hydrazine, and increased sensitivity and spectral resolution for the surface enhanced Raman scattering (SERS) of 4,4-bipyridal.

The artist is a thief: A book review

Stephen Gray is a writer and law lecturer who has been living in Darwin since 1989. He started out writing formal legal pieces about how copyright law had unsuccessfully sought to accommodate Aboriginal art. Such work led him to further investigate the philosophical questions underlying the legal issues affecting both traditional and urban Indigenous people. Gray has also explored matters of bioprospecting in relation to Indigenous biological resources. He has investigated the introduction of a label of authenticity into Australia. Gray has also published a number of articles about other legal issues affecting Indigenous people. He has explored such topics as native title, customary law, alternative dispute resolution, and criminal law. Gray has recently been awarded The Australian/ Vogel Literary Award for his novel The Artist is a Thief. He was inspired to write a book after being sent out to a community on a possible copyright claim as part of his job in the law faculty of Northern Territory University: "I wrote an academic article and then a more philosophical piece talking about the copyright act and the way it doesn't really protect traditional artists who have a very different view of the place of their art. The pieces were interesting, but I felt there was something more there that needed a fictional expression as well." It is ironic that such a self-conscious and sophisticated meditation upon appropriation and authenticity should win The Australian/ Vogel Literary Award. The inaugural award in 1980 was won by Paul Radley, who later revealed his books were mostly written by his uncle, and in 1993 it was won by Helen Demidenko, aka Darville, who had lied about her Ukrainian background and family history.

Who Rules Japan? Popular Participation in the Japanese Legal Process

"The dramatic growth of the Japanese economy in the postwar period, and its meltdown in the 1990s, has attracted sustained interest in the power dynamics underlying the management of Japan’s administrative state. Scholars and commentators have long debated over who wields power in Japan, asking the fundamental question: who really governs Japan? This important volume revisits this question by turning its attention to the regulation and design of the Japanese legal system. With essays covering the new lay-judge system in Japanese criminal trials, labour dispute resolution panels, prison policy, gendered justice, government lawyers, welfare administration and administrative transparency, this comprehensive book explores the players and processes in Japan’s administration of justice."--publisher website

Screening for partner violence among family mediation clients: Differentiating types of abuse

Family mediation is mandated in Australia for couples in dispute over separation and parenting as a first step in dispute resolution, except where there is a history of intimate partner violence. However, validation of effective well-differentiated partner violence screening instruments suitable for mediation settings is at an early phase of development. This study contributes to calls for better violence screening instruments in the mediation context to detect a differentiated range of abusive behaviors by examining the reliability and validity of both established scales, and newly developed scales that measured intimate partner violence by partner and by self. The study also aimed to examine relationships between types of abuse, and between gender and types of abuse. A third aim was to examine associations between types of abuse and other relationship indicators such as acrimony and parenting alliance. The data reported here are part of a larger mixed method, naturalistic longitudinal study of clients attending nine family mediation centers in Victoria, Australia. The current analyses on baseline cross-sectional screening data confirmed the reliability of three subscales of the Conflict Tactics Scale (CTS2), and the reliability and validity of three new scales measuring intimidation, controlling and jealous behavior, and financial control. Most clients disclosed a history of at least one type of violence by partner: 95% reported psychological aggression, 72% controlling and jealous behavior, 50% financial control, and 35% physical assault. Higher rates of abuse perpetration were reported by partner versus by self, and gender differences were identified. There were strong associations between certain patterns of psychologically abusive behavior and both acrimony and parenting alliance. The implications for family mediation services and future research are discussed.

The adjustment of leadership styles in intercultural workplace – some evidences from the multinational construction companies in Hong Kong

This study investigates the existence of intercultural adjustment in the multicultural construction workplaces by examining the leadership orientations (task-/people-orientation), communication and conflict resolution skills (high/low-context culture), and power relationship styles (high/low power distance) of local Chinese and the British expatriate project managers in the multinational construction companies in Hong Kong. A sample of project managers (N = 40) and their subordinates (N = 61) were surveyed using the structured questionnaires. Statistical techniques (independent-samples t-test, and Pearson correlation analysis) were employed to evaluate the data. The results revealed a number of interesting findings. First, it was found that both project manager groups equally considered the importance of task performance and interpersonal relationship. The results of correlations analysis provide support for the linkages of the length of working abroad with the change in task/people orientation for Chinese and expatriate managers. The analysis revealed that those Chinese managers who have the longest length of time living or working in Western countries tended to measure higher on task-orientation. Similarly, those British expatriate managers who have the longest period of working in Hong Kong tended to be less task-orientated. Second, local Chinese managers were found to be more confrontational when they strongly disagree with their team members than their British expatriate counterparts. It would appear that stress from project deadline which increase the directness and terseness in communication acts, and retain the composure of project managers in dealing with the subordinates. Finally, our findings show that there is significant difference between local Chinese and British expatriate managers in their power relationship with subordinates. This implies that although the intercultural adjustment might influence perceptions of local and expatriate managers, some dominant deep-rooted cultural values and beliefs are still not easily altered. Conclusions are presented along with suggestions for future studies.