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.

Maintaining the ethic of service [Editorial]

This issue of Precedent is concerned with professional legal ethics. ln my view, professional ethics are rules about how you do your job, based on moral principles. By virtue of the nature of the work they do, the reputation of the institution through which they are admitted to practice (the court), and the consequences that can flow if they act inappropriately or incompetently, lawyers are under constant scrutiny in all aspects of their lives. Errors, omissions or misdeeds in both their professional and their personal lives have the potential to damage them, their clients, the profession itself and the court. We ought never to take for granted the trust the public places in us to preserve the integrity of the legal system itself, especially in times when that system may be under threat, either from without or from within.

The knowing client : a processual perspective on knowledge shaping in consulting engagements

This thesis extends current understanding in management consulting research by investigating the ways in which management consultants and their clients shaped knowing over the course of nine different consulting engagements. The research illuminates the client experience of using consulting knowledge in organisations, and proposes a theoretical reconceptualisation of knowledge shaping in consulting engagements which incorporates how the knowing client is enacted. The research shows that knowledge shaping activities are planned and enacted to support novelty reduction in consulting engagements; that asymmetries in the structuring of the consultant–client relationship hamper knowledge transformation and the establishment of knowing; and that understanding of how the role identities of consultants and clients are established and maintained over the course of an engagement is integral to understanding knowledge shaping in consulting engagements.

Intellectual Property – What Went Wrong!

In its simplest form the patent system is designed to encourage the disclosure of innovative thought in exchange for a period of exclusivity in which the grantee of the rights may profit from such knowledge. I will attempt in this paper to show that patentees seeking to enforce their patents in Australia will face great difficulty through a number of potentially fatal pitfalls. I also submit that as a result of the decisions in Australia in reported patent cases in the last ten years, legal advisers should place their clients on notice that if they are trying to enforce their patents they are unlikely to succeed...

Value management in design planning : a systems-based framework for multi-disciplinary team involvement

This thesis investigates the Value Management processes used by construction project clients that effects project team involvement in VM workshops during the design stage of the projects. It is based on five case studies of the Malaysian international airport construction project packages. The focus of the research is on how issues related to infrastructure design that can improve construction processes on-site are being identified, analysed and resolved through multi-disciplinary team participation. The degrees of interaction, diversity of visualisation aids, certain cultural dimensions and the system thinking approach are found to have significant influence in maximizing participation among project team members during the entire VM workshop process.

Book Review : "Statutory Will Applications : A practical Guide by Richard Williams and Sam McCullough"

The jurisdiction of Australian courts to make wills for those lacking testamentary capacity is relatively new, having been granted by legislation progressively enacted across the various states and territories between 1996 and 2010. Given increasing numbers of statutory will applications since the legislative reform, and a growing body of law, the publication of the specialist work, Statutory Will Applications: A Practical Guide, by Richard Williams and Sam McCullough, is timely and valuable. This work will be of great interest to those who act for individual clients, especially wills and estates practitioners, but also personal injury practitioners acting for incapacitated persons who have been awarded substantial damages.

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.

The book of revelations

"Nihilistic act embraces doomsday The Age – December 2012 By Rebecca Harkins-Cross For The Book of Revelations A WOMAN stumbles backwards through the audience, burdened by an overflowing backpack, muttering about the home she’s left behind. When she reaches the mountain onstage, she looks upon its cloud-swirled peak with awe. This stillness is ruptured by an involuntary outburst as she begins spitting out the scourges of the modern world – “nuclear explosion… war… car salesman”, she yells. This is the final show in La Mama’s explorations season, which allows performers to stage works still in development. Devised and performed by theatre maker and academic Alison Richards, it questions our eschatological paranoia that the end times are upon us. It is fitting then that it is premiered on the eve of the Mayan’s prophesised doomsday. Like many pilgrims before her, Ada (Richards) ascends the mountain in search of salvation, but her journey evokes sublime terror; she speaks in tongues, collapses into fitful sleeps. Richards combines operatic singing with an ethereal score by Faye Bendrups, her eruptions into song apparently brought on by the mountain’s ecstatic pull. Richards’ seraphic voice is haunting, the lyrics evoking visions of birth and death. But when Ada finally converses with the heavens, she does not receive the revelations she hopes for: the voice of the divine is nihilistic, urging her to accept the universe’s chaos. While the work is still fragmentary, unfolding like a dream, this is a powerful performance by Richards. Its striking imagery fails to cohere yet in narrative terms, but it is promising nonetheless."

What Next? Future Directions for R&D Investment

Professor Peter Barrett at the 2013 CIB World Building Congress1 (WBC13) presented a timely context for the future of research and development (R&D) investment in the global construction industry (Barrett, 2013). He called for a shift in the focus from lessons learned and doing things better to what is the right thing to do and developing a new paradigm for achieving this. This shift requires empathy with industry and users; a desire to generate and transmit knowledge; an opportunity to study deeply and over the long term; and with an objective stance towards fJositive and negative findings. This shift includes the creation of sta11dards for the holistic impact of spaces through exemplary pilot projects creating evidence for policy makers and clients (Barrett, 2013)...

Sex workers can be screened too often : a cost-effectiveness analysis in Victoria, Australia

Objectives Commercial sex is licensed in Victoria, Australia such that sex workers are required to have regular tests for sexually transmitted infections (STIs). However, the incidence and prevalence of STIs in sex workers are very low, especially since there is almost universal condom use at work. We aimed to conduct a cost-effectiveness analysis of the financial cost of the testing policy versus the health benefits of averting the transmission of HIV, syphilis, chlamydia and gonorrhoea to clients. Methods We developed a simple mathematical transmission model, informed by conservative parameter estimates from all available data, linked to a cost-effectiveness analysis. Results We estimated that under current testing rates, it costs over $A90 000 in screening costs for every chlamydia infection averted (and $A600 000 in screening costs for each quality-adjusted life year (QALY) saved) and over $A4 000 000 for every HIV infection averted ($A10 000 000 in screening costs for each QALY saved). At an assumed willingness to pay of $A50 000 per QALY gained, HIV testing should not be conducted less than approximately every 40 weeks and chlamydia testing approximately once per year; in comparison, current requirements are testing every 12 weeks for HIV and every 4 weeks for chlamydia. Conclusions Mandatory screening of female sex workers at current testing frequencies is not cost-effective for the prevention of disease in their male clients. The current testing rate required of sex workers in Victoria is excessive. Screening intervals for sex workers should be based on local STI epidemiology and not locked by legislation.

Very high resolution optical satellites for DEM generation : a review

The advent of very high resolution (VHR) optical satellites capable of producing stereo images led to a new era in extracting digital elevation model which commenced with the launch of IKONOS. The special specifications of VHR optical satellites besides, the significant economic profit stimulated other countries and companies to have their constellations such as EROS-A1 and EROS-B1 as the cooperation between Israel and ImageSat. QuickBird, WorldView-1 and WorldVew-2 were launched by DigitalGlobe. ALOS and GeoEye-1 were offered by Japan and GeoEye Respectively. In addition to aforementioned satellites, Indian and South Korea initiated their own constellation by launching CartoSat-1 and KOPOSAT-2 respectively.The availability of all so-called satellites make a huge market of stereo images for extracting of digital elevation model and other correspondent applications such as, producing orthorectifcatin images and updating maps. Therefore, there is a need for a comprehensive comparison for scientific and commercial clients to choose appropriate satellite images and methods of generating digital elevation model to obtain optimum results. This paper will thus give a review about the specifications of VHR optical satellites. Then it will discuss the automatic elaborating of digital elevation model. Finally an overview of studies and corresponding results is reported.

Ausma Bushfire Research : Photographic record of built work

Colour Photographs of built work of architecture: Ausma House, Ocean Beach, Shire of Denmark Western Australia. Conducted as 100% commercial research with QUT-Client agreement. Clients M & S Ausma.

Labour Law and Labour Market Regulation

The traditional boundaries of labour law are becoming outmoded in a modern world in which active labour market participants vastly outnumber “employees”, and the world of work extends way beyond the workplace gate. There is convergence with labour market regulation. The contract of employment remains central but is no longer the sole object of study.Labour Law and Labour Market Regulation reflects the dramatically different industrial, social, political and legislative contexts in which the law now operates and the intellectual revolution this is generating. Individual chapters contain studies of regulation within prescriptive government schemes, contract networks, specialist labour markets, the intersection between work and family, enterprise policies and practices, and the courts and tribunals. The book provides insights into areas that are, as arbitration declines, becoming increasingly important to their clients' interests. The most recent legislation and jurisprudence is discussed in many chapters including discrimination, dismissals, health and safety, immigration, social security, franchise, volunteer and contract law.

Is there such a thing as an “irrevocable authority”?

The Queensland Court of Appeal decision of FTV Holdings Cairns Pty Ltd v Smith [2014] QCA 217 analysed many issues concerning the enforceability of an “irrevocable authority” signed by clients directed to their solicitors regarding the payment of money to a third party. The action also drew those solicitors into the litigation as they acted contrary to that “irrevocable authority” by paying the money concerned directly to their clients but upon their clients’ later instructions. The result probably confirmed what many solicitors have believed to be the case for some time but which had never been considered in legal analysis in an appellate court. The facts of the case would be common to many day to day transactions.

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.