Settling sexual harassment complaints - what benefits does ADR offer?

Sexual harassment complaints are predominantly resolved through confidential alternative dispute resolution (ADR) processes rather than a tribunal hearing, so very little is known about the type of complaints which are made or how they are being resolved. This secrecy has created problems for the law’s development and its effectiveness. This article compares settlement agreements negotiated through ADR with tribunal orders, so as to identify whether ADR offers any additional benefits to the process of addressing sexual harassment and to identify changes to the process which would increase the law’s effectiveness while maintaining the benefits of ADR. Very little is known about the type of settlements negotiated in this jurisdiction, so the secondary purpose of the study is to provide information about how sexual harassment is being addressed.

In defence of settlement: resolving discrimination complaints by agreement

Alternative dispute resolution (ADR) has become an entrenched feature of Australia’s anti-discrimination law, so much so that the vast majority of discrimination complaints are settled. There are many reasons to be against settlement but with reference to a study of the outcomes negotiated in discrimination complaints settled in Queensland, this article shows that there are valid reasons to be in favour of settlement, particularly when it results in systemic remedies which would not be obtained otherwise. The article concludes by presenting modifications to the existing complaint resolution system which would retain ADR while ensuring that the wider, systemic aspects of a discrimination claim are also addressed by introducing an institution with the power to enforce the law.

From Darfur to Sinai to Kashmir: Ethno-religious conflicts and legalization

This paper attempts to examine agreements between two high conflict states - India and Pakistan - in comparison with those between parties characterized by high degrees of conflict along ethnic and religious lines, from a theoretical perspective with a view to determining if legalization has any correlation between the commitments embodied in agreements between such states and the degree of compliance. For purposes of comparison, I examine the historic agreement between Israel and Egypt, and the Darfur Peace Agreement (DPA) as exemplars of similar conflicts where legalization has salience. I adopt the lens of legalization articulated by Abbott, et al, and bring recent advances from the intersection of international relations theory and international law to the design and structuring of agreements between states beset by persistent hostilities. I analyse agreements between India and Pakistan, Israel and Egypt, and the Darfur Peace Agreement, to demonstrate that agreements that are high on the precision-obligation-delegation matrix enjoy higher degrees of success than those that are low on this matrix when concluded between high conflict states. I conclude by arguing that India and Pakistan should aim for hard legalization to solve the Kashmir dispute, and that they must learn from the painful experience of the Darfur Peace Agreement and include non-state actors as signatories to any agreement.

Examining the approaches to diminish judicial intervention in statutory adjudication in Australia

In Australia, statutory construction adjudication is a fast payment dispute resolution process designed to keep the cash flowing down the hierarchical contractual chain in construction projects. Its rapid, highly regulatory and temporarily binding nature have led to it being often described as a ‘quick and dirty’ process that delivers ‘rough and ready’ justice. Adjudicators often have to grapple with complex legal issues related to jurisdictional facts and interpretation of contract provisions, though the majority of them are not legally trained. This has often led to a poor quality of adjudication outcome for large and complex payment claims which has, in turn, led to a mounting dissatisfaction due to the many judicial challenges to adjudicators’ determinations seen in recent years. The evolving tension between the object of the security of payment legislation and excessive involvement of the courts has often been the subject of comment by the judiciary. This paper aims to examine the legislative and judicial approaches to support the object of the security of payment legislation to ease cash flow. The paper adopts a desktop study approach whereby evidence is gathered from three primary sources – judicial decisions, academic publications and governmental reports. The paper concludes that there is a need to adopt other measures which can provide more convenient relief to aggrieved parties to an adjudication process, such that the adjudication process is kept away from the courts as far as is possible. Specifically, it is proposed that a well-designed expanded legislative review scheme of allegedly flawed adjudication, based on that provided in the Western Australian legislation, might stand as a promising remedy to eliminate the evolving tension.

Towards diminishing judicial intervention in statutory adjudication: a pragmatic proposal

Statutory adjudication was introduced into the Security of Payment (SOP) legislation as a fast-track payment dispute resolution process aiming to achieve the object of the legislation to facilitate cash flow within the construction contractual chain. As such, adjudication determinations were usually released and enforced on a "pay now, argue later" 1 basis in order to protect a vulnerable class of smaller businesses within the building and construction industry. The SOP legislation was extremely successful in attaining the stated object in the context of small adjudicated payment claims where both parties used to comply with the adjudication determination.

Family caregivers of the mentally ill and adaptive coping

The issue investigated in this thesis concerned the adaptive coping strategies that caregivers of the mentally ill adopt at different stages of encounter with their family member’s illness. Specifically, family caregivers’ responses to the illness were investigated within the parameters of the Spaniol and Zipple (1994) 4-stage model of the evolution of caregivers’ responses to mental illness. The accuracy of the model’s representation of the experience of caregivers across all kinship relationships to the care-recipient was evaluated. Spaniol and Zipple proposed four stages which they termed (1) Discovery/Denial, (2) Recognition/Acceptance, (3) Coping and (4) Personal/Political Advocacy. The first stage is characterised by persistent denial of mental illness and seeking answers from multiple sources. The second stage involves caregivers’ expectations of professionals providing answers when the illness is recognised. At this stage caregivers experience guilt, embarrassment and blame. The cyclical nature of the illness impedes acceptance and caregivers experience a deep sense of loss and crisis of meaning as they gradually accept the reality of the situation. In the third stage coping replaces grieving and the issues encountered include loss of faith in professionals, disruption to family life and recurrent crises. Belief in family expertise grows and the focus of coping changes. The fourth stage proposes that caregivers become more assertive, self-blame decreases and the focus is upon changing the system. New meanings and values are integrated. This study found that the model did not accurately describe the experience of all caregivers. Caregiver did not deny mental illness and adaptive coping occurred throughout all stages. Coping evolved as the issues encountered changed and was independent of resolution of grief. The issues encountered were more extensive than the model proposed and differed according to kinship relationship to the care recipient. The ways in which adaptive coping evolved were identified, as were the issues and their accompanying responses. Caregivers coped by adaptively responding to the requirements of care provision, maintaining a sense of self worth and generating positive effect.

AssetDivider : a new mediation tool in Australian family law

This article describes research in a new theory of decision support in negotiation in family law mediation. AssetDivider was based on the principles of Family_Winner. As a Negotiation Decision Support System Family_Winner takes ratings assigned to items by the parties involved and develops a list of allocations to each party; based on trade-offs inherently present in the dispute. Given advice provided from our industry partners Relationships Australia (Queensland) - RAQ, AssetDivider uses an ideal “percentage split” to guide the development of an allocation list for parties. The system has been tested informally by our contacts at RAQ, and we now look forward to extensive testing and evaluation by mediators at RAQ in the near future. We hope to report on a comprehensive evaluation which will report on the effectiveness of this program in practice.