An evaluation of the sustainability of agreements reached through mediations conducted by the dispute resolution centres of the Department of Justice and Attorney General, Queensland between 1999 to 2003

In 1990 the Dispute Resolution Centres Act, 1990 (Qld) (the Act) was passed by the Queensland Parliament. In the second reading speech for the Dispute Resolution Centres Bill on May 1990 the Hon Dean Wells stated that the proposed legislation would make mediation services available “in a non-coercive, voluntary forum where, with the help of trained mediators, the disputants will be assisted towards their own solutions to their disputes, thereby ensuring that the result is acceptable to the parties” (Hansard, 1990, 1718). It was recognised at that time that a method for resolving disputes was necessary for which “the conventional court system is not always equipped to provide lasting resolution” (Hansard, 1990, 1717). In particular, the lasting resolution of “disputes between people in continuing relationships” was seen as made possible through the new legislation; for example, “domestic disputes, disputes between employees, and neighbourhood disputes relating to such issues as overhanging tree branches, dividing fences, barking dogs, smoke, noise and other nuisances are occurring continually in the community” (Hansard, 1990, 1717). The key features of the proposed form of mediation in the Act were articulated as follows: “attendance of both parties at mediation sessions is voluntary; a party may withdraw at any time; mediation sessions will be conducted with as little formality and technicality as possible; the rules of evidence will not apply; any agreement reached is not enforceable in any court; although it could be made so if the parties chose to proceed that way; and the provisions of the Act do not affect any rights or remedies that a party to a dispute has apart from the Act” (Hansard, 1990, 1718). Since the introduction of the Act, the Alternative Dispute Resolution Branch of the Queensland Department of Justice and Attorney General has offered mediation services through, first the Community Justice Program (CJP), and then the Dispute Resolution Centres (DRCs) for a range of family, neighbourhood, workplace and community disputes. These services have mirrored those available through similar government agencies in other states such as the Community Justice Centres of NSW and the Victorian Dispute Resolution Centres. Since 1990, mediation has become one of the fastest growing forms of alternative dispute resolution (ADR). Sourdin has commented that "In addition to the growth in court-based and community-based dispute resolution schemes, ADR has been institutionalised and has grown within Australia and overseas” (2005, 14). In Australia, in particular, the development of ADR service provision “has been assisted by the creation and growth of professional organisations such as the Leading Edge Alternative Dispute Resolvers (LEADR), the Australian Commercial Dispute Centres (ACDC), Australian Disputes Resolution Association (ADRA), Conflict Resolution Network, and the Institute of Arbitrators and Mediators Australia (IAMA)” (Sourdin, 2005, 14). The increased emphasis on the use of ADR within education contexts (particularly secondary and tertiary contexts) has “also led to an increasing acceptance and understanding of (ADR) processes” (Sourdin, 2005, 14). Proponents of the mediation process, in particular, argue that much of its success derives from the inherent flexibility and creativity of the agreements reached through the mediation process and that it is a relatively low cost option in many cases (Menkel-Meadow, 1997, 417). It is also accepted that one of the main reasons for the success of mediation can be attributed to the high level of participation by the parties involved and thus creating a sense of ownership of, and commitment to, the terms of the agreement (Boulle, 2005, 65). These characteristics are associated with some of the core values of mediation, particularly as practised in community-based models as found at the DRCs. These core values include voluntary participation, party self-determination and party empowerment (Boulle, 2005, 65). For this reason mediation is argued as being an effective approach to resolving disputes, that creates a lasting resolution of the issues. Evaluation of the mediation process, particularly in the context of the growth of ADR, has been an important aspect of the development of the process (Sourdin, 2008). Writing in 2005 for example, Boulle, states that “although there is a constant refrain for more research into mediation practice, there has been a not insignificant amount of mediation measurement, both in Australia and overseas” (Boulle, 2005, 575). The positive claims of mediation have been supported to a significant degree by evaluations of the efficiency and effectiveness of the process. A common indicator of the effectiveness of mediation is the settlement rate achieved. High settlement rates for mediated disputes have been found for Australia (Altobelli, 2003) and internationally (Alexander, 2003). Boulle notes that mediation agreement rates claimed by service providers range from 55% to 92% (Boulle, 2005, 590). The annual reports for the Alternative Dispute Resolution Branch of the Queensland Department of Justice and Attorney-General considered prior to the commencement of this study indicated generally achievement of an approximate settlement figure of 86% by the Queensland Dispute Resolution Centres. More recently, the 2008-2009 annual report states that of the 2291 civil dispute mediated in 2007-2008, 86% reached an agreement. Further, of the 2693 civil disputes mediated in 2008-2009, 73% reached an agreement. These results are noted in the report as indicating “the effectiveness of mediation in resolving disputes” and as reflecting “the high level of agreement achieved for voluntary mediations” (Annual Report, 2008-2009, online). Whilst the settlement rates for the DRCs are strong, parties are rarely contacted for long term follow-up to assess whether agreements reached during mediation lasted to the satisfaction of each party. It has certainly been the case that the Dispute Resolution Centres of Queensland have not been resourced to conduct long-term follow-up assessments of mediation agreements. As Wade notes, "it is very difficult to compare "success" rates” and whilst “politicians want the comparison studies (they) usually do not want the delay and expense of accurate studies" (1998, 114). To date, therefore, it is fair to say that the efficiency of the mediation process has been evaluated but not necessarily its effectiveness. Rather, the practice at the Queensland DRCs has been to evaluate the quality of mediation service provision and of the practice of the mediation process. This has occurred, for example, through follow-up surveys of parties' satisfaction rates with the mediation service. In most other respects it is fair to say that the Centres have relied on the high settlement rates of the mediation process as a sign of the effectiveness of mediation (Annual Reports 1991 - 2010). Research of the mediation literature conducted for the purpose of this thesis has also indicated that there is little evaluative literature that provides an in-depth analysis and assessment of the longevity of mediated agreements. Instead evaluative studies of mediation tend to assess how mediation is conducted, or compare mediation with other conflict resolution options, or assess the agreement rate of mediations, including parties' levels of satisfaction with the service provision of the dispute resolution service provider (Boulle, 2005, Chapter 16).

Commentary on papers by Professor Fletcher and Mr Martin

In light of the time available today, I will limit my comments to addressing that aspect of Professor Fletcher’s paper in which he refers to the 2012 report he co-authored with Professor Wessels of the Netherlands for the American Law Institute (ALI) and the International Insolvency Institute (III) on Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases. I will comment on the potential benefits for Australian courts as well as insolvency administrators and their advisers in referring to the ALI-III Report - in light of Australia’s adoption of the UNCITRAL Model Law. In so doing, I would like to acknowledge the support of the Australian Academy of Law, under the leadership of The Hon Dr Kevin Lindgren for the research project underpinning these comments, as well as to acknowledge the contributions of my colleagues Associate Professor Sheryl Jackson and Mark Wellard.

An analysis for the causes of accidents of repair, maintenance, alteration and addition works in Hong Kong

This study unveils causes of accidents in repair, maintenance, alteration and addition (RMAA) work. RMAA work is playing an increasingly important role in developed societies, including Hong Kong. Safety problems associated with RMAA work in Hong Kong has reached an alarming level. In view of rapid expansion of the RMAA sector and rising proportion of accidents in the construction industry, there is a pressing need to investigate causes of RMAA accidents. Structured interviews were conducted with RMAA contractors to explore causes of accidents in the RMAA sector. A two-round Delphi method with 13 safety experts was subsequently employed to verify the interview findings and rank the relative degree of importance for various causes of accidents. Accidents happen in RMAA work due to intersection of reasons. One of the root causes of accidents in RMAA works is low safety awareness of RMAA workers; however, wider organizational and industrial factors are not negligible. This study sheds light on why accidents happen in the RMAA sector. Only when the factors leading to accidents are identified can effective measures be made.

Empirical study to investigate the difficulties of implementing safety practices in the repair and maintenance sector in Hong Kong

Repair, maintenance, minor alteration, and addition work (RMAA) has become more and more important in developed societies, but its safety performance is alarming. For example, RMAA projects accounted for 53.2% of the total construction market and the percentage of RMAA accidents to all construction accidents in the Hong Kong Special Administrative Region (HKSAR) increased considerably in 2007. The RMAA sector has a huge potential for safety improvement. This study aims to explore and evaluate the difficulties of implementing safety practices in RMAA work. The mixed methods approach was adopted, and semistructured interviews and a two-round Delphi survey were conducted for the data collection. Major difficulties were identified, including limited safety resources for small and medium enterprises (SMEs), difficulty in changing the mindset of RMAA workers, and difficulty in performing safety supervision. These obstacles for implementing safety practices in the RMAA sector, if successfully removed, could significantly improve the safety performance of the RMAA sector and the construction industry as a whole.

Safety management in repair, maintenance, minor alteration, and addition works : knowledge management perspective

Safety of repair, maintenance, alteration, and addition (RMAA) works have long been neglected because RMAAworks are often minute and only last for a short period of time. With rising importance of the RMAA sector in many developed societies, safety of RMAA works has begun to draw attention. Many RMAA contracting companies are small- and medium-sized enterprises (SMEs) that do not have comprehensive safety management systems. Existing safety legislation and regulations for new construction sites are not fully applicable to RMAAworks. Instead of relying on explicit and well-established safety systems, tacit safety knowledge plays an extremely important role in RMAA projects. To improve safety of RMAAworks, safety knowledge should be better managed. However, safety knowledge is difficult to capture in RMAA works. This study aims to examine safety management practices of RMAA contracting companies to see how safety knowledge of RMAA projects is managed. Findings show that RMAA contracting companies undertaking large-scale RMAA projects have more initiatives of safety management. Safety management of small-scale RMAA works relies heavily on the motivation of site supervisors and self-regulation of workers. Better tacit knowledge management improves safety performance. To enhance safety capability of RMAA contracting companies, a knowledge sharing culture should be cultivated. The government should provide assistance to SMEs to implement proper safety management practices in small-sized projects. Potentials of applying computer software technology in RMAA projects to capture, store, and retrieve safety information should be explored. Employees should be motivated to share safety knowledge by giving proper recognition to those who are willing to share.

Safety climate and injury occurrence of repair, maintenance, minor alteration and addition works : a comparison of workers, supervisors and managers

Purpose The repair, maintenance, minor alteration and addition (RMAA) sector has been expanding in many developed cities. Safety problems of the RMAA sector have attracted the attention of many governments. This study has the objectives of comparing the level of safety climate of workers, supervisors and managers in the RMAA sector; and explaining/ predicting the impact of safety climate on injury occurrence of workers, supervisors and managers. Design/methodology/approach A questionnaire survey was administered to RMAA contracting companies in Hong Kong. Findings When comparing the safety climate perception of workers, supervisors and managers in the RMAA sector, the supervisors group had the lowest mean safety climate score. Results showed that a positive workforce safety attitude and acceptance of safety rules and regulations reduced the workers’ likelihood of having injuries. A reasonable production schedule led to a lower probability of supervisors being injured. Management commitment and effective safety management reduced the probability of managers being injured. Originality/value This study revealed variations of safety climate at the different levels in the organizational hierarchy and their varying influence on safety performance of the RMAA sector. Safety of RMAA works could be improved by promulgating specific safety measures at the different hierarchy levels.

Fatalities of repair, maintenance, minor alteration, and addition works in Hong Kong

This study examines fatalities of repair, maintenance, minor alteration, and addition (RMAA) works which occurred in Hong Kong between January 2000 and October 2011. A total of 119 RMAA fatalities were recorded. Particular emphasis was placed on fall from height accidents as they accounted for the vast majority of RMAA fatal accidents for the period. A cluster analysis was conducted on fall from height fatal cases. The cluster analysis clearly identified three groups of fall from height fatalities: (1) bamboo scaffolders aged between 25 and 34 who fell from external wall/facade in the beginning of weekdays; (2) miscellaneous workers aged between 45 and 54 who fell from other/unknown places in the end of weekdays; and (3) manual labour aged between 35 and 44 who fell at floor level/from floor openings in weekends. Unsafe process and improper procedures were the main unsafe condition leading to fatalities whereas safety belt not properly used was the main unsafe action leading to fatalities. Specific safety interventions were recommended for each of these groups to help avoid these fatalities.

Relationships between safety climate and safety performance of building repair, maintenance, minor alteration, and addition (RMAA) works

The importance of repair, maintenance, minor alteration, and addition (RMAA) works is increasing in many built societies. When the volume of RMAA works increases, the occurrence of RMAA accidents also increases. Safety of RMAA works deserves more attention; however, research in this important topic remains limited. Safety climate is considered a key factor that influences safety performance. The present study aims to determine the relationships between safety climate and safety performance of RMAA works, thereby offering recommendations on improving RMAA safety. Questionnaires were dispatched to private property management companies, maintenance sections of quasi-government developers and their subcontractors, RMAA sections of general contractors, small RMAA contractors, building services contractors and trade unions in Hong Kong. In total, data from 396 questionnaires were collected from RMAA workers. The sample was divided into two equal-sized sub-samples. On the first sub-sample SEM was used to test the model, which was validated on the second sub-sample. The model revealed a significant negative relationship between RMAA safety climate and incidence of self-reported near misses and injuries, and significant positive relationships between RMAA safety climate and safety participation and safety compliance respectively. Higher RMAA safety climate was positively associated with a lower incidence of self-reported near misses and injuries and higher levels of safety participation and safety compliance.

Determining safety climate factors in the repair, maintenance, minor alteration, and addition sector of Hong Kong

The accident record of the repair, maintenance, minor alteration, and addition (RMAA) sector has been alarmingly high; however, research in the RMAA sector remains limited. Unsafe behavior is considered one of the key causes of accidents. Thus, the organizational factors that influence individual safety behavior at work continue to be the focus of many studies. The safety climate, which reflects the true priority of safety in an organization, has drawn much attention. Safety climate measurement helps to identify areas for safety improvement. The current study aims to identify safety climate factors in the RMAA sector. A questionnaire survey was conducted in the RMAA sector in Hong Kong. Data were randomly split into the calibration and the validation samples. The RMAA safety climate factors were determined by exploratory factor analysis on the calibration sample. Three safety climate factors of the RMAA works were identified: (1) management commitment to occupational health and safety (OHS) and employee involvement, (2) application of safety rules and work practices, and; (3) responsibility for health and safety. Confirmatory factor analysis (CFA) was then conducted on the validation sample. The CFA model showed satisfactory goodness of fit, reliability, and validity. The suggested RMAA safety climate factors can be utilized by construction industry practitioners in developed economies to measure the safety climate of their RMAA projects, thereby enhancing the safety of RMAA works.

Strategies for improving safety performance of repair, maintenance, minor alteration and addition (RMAA) works

Purpose Managing and maintaining infrastructure assets are one of the indispensible tasks for many government agencies to preserve the nations' economic viability and social welfare. To reduce the expenditures over the life-cycle of an infrastructure asset and extend the period for which the asset performs effectively, proper repair and maintenance are essential. While repair, maintenance, minor alteration and addition (RMAA) sector is expanding in many developed cities, occurrences of fatalities and injuries in this sector are also soaring. The purposes of this paper are to identify and then evaluate the various strategies for improving the safety performance of RMAA works. Design/methodology/approach Semi-structured interviews and two rounds of Delphi survey were conducted for data collection. Findings Raising safety awareness of RMAA workers and selecting contractors with a good record of safety performance are the two most important strategies to improve the safety performance in this sector. Technology innovations and a pay-for-safety scheme are regarded as the two least important strategies. Originality/value The paper highlights possible ways to enhance safety of the rather under-explored RMAA sector in the construction industry.

Improving megasite management performance through incentives : lessons learned from the Shanghai Expo construction

As the biggest expo site in history, construction of the Shanghai Expo site faced a lot of challenges, including involvement of lots of investors, megaconstruction scale, concurrent construction mode, involvement of more than 40,000 migrant workers, and extremely tight completion deadlines, among others. Consequently, these challenges imposed great obstacles on accomplishing the safety, quality, and environmental goals. Through a case study of the Shanghai Expo construction, this paper paper presents the design and implementation of multicriteria incentives in megaprojects to accomplish the safety, quality, and environmental goals. Both quantitative and qualitative findings were triangulated to demonstrate the outcome of the incentives. Six critical success factors (CSFs) for the incentives, rule design, process orientation, top management support, training and promotion, communication in process, and process learning and improvement are identified and validated through case study data and content analysis. It is believed that the findings of this paper can enhance understanding of multicriteria incentive schemes in general and provide insights in implementing these incentive schemes in future megaprojects, particularly in the People’s Republic of China (PRC).

RMAA safety performance : how does it compare with Greenfield projects?

Gross value of cons truction work in the repair , maintenance, minor alte ration and addition (RMAA) sector in Hong Kong has expanded dramatically by 58% from 1998 to 2007, accounting for over 53% of the whole construction market in 2007. Unfortunately, the portion of industrial accidents arising from this sector also increased substantially during the same period. It is important to improve the safety performance of the RMAA sector. This paper has set out the objectives to examine safety statistics of RMAA works; to compare them with those of green field projects; and more importantly, to highlight potential hurdles en countered in the process of comparison and finally to provide effective recommendations for overcoming these impediments. To strive for continuous safety improvement of RMAA works, comparable safety statistics should be compiled for this sector.

A game theoretical approach to construction safety in the Repair, Maintenance, Alteration and Addition (RMAA) sector

Safety has long been a problem in the construction industry. Repair, maintenance, alteration and addition (RMAA) sector has emerged to play an important role in the construction industry. It accounted for 53% of the total construction market in Hong Kong in 2007. Safety performance of the RMAA words has been alarming. Statistics indicate that the percentage of fatal industrial accidents arising from RMAA work in Hong Kong was over 56% in 2006 while the remaining 44% was from new works. Effective safety measures to address the safety problems and improve safety performance of the RMAA sector are urgently needed. Unsafe behaviour has been attributed to one of the major causes of accidents. Traditional cost-benefit analysis of workers' safety behaviour seems to be inadequate. This paper proposes to adopt a game theoretical approach to analyse safety behaviour of RMAA workers. Game theory is concerned with the decision-making process in situations where outcomes depend upon choices made by one or more players. A game theoretical model between contractor and worker has been proffered. Mathematical analysis of this game model has been done and implications of the analysis have been discussed.

Construction safety for ethnic minorities in Hong Kong

The construction industry of Hong Kong is experiencing an ageing problem and a labour shortage. To alleviate the shortage of construction workforce, the government has initiatives to assist ethnic minorities to join the construction industry. It is foreseeable that more people from the ethnic minorities will join the construction industry. The safety of workers from the ethnic minorities in construction has attracted growing research interest in many developed countries. Statistics show that workers from the ethnic minorities were nearly 30 percent more likely to have work-related injuries than local workers. However, in Hong Kong, official statistics on the safety of workers from the ethnic minorities are not available. This reflects the racial or ethnic insensitivity of the construction industry in Hong Kong. As the safety of ethnic minorities has not received the attention, this research seeking to contribute to efforts to improve the safety of workers from the ethnic minorities in the construction industry of Hong Kong is all the more urgent. This paper provides an initial report of a research project which focuses on improving the safety of ethnic minority construction workers. Qualitative and quantitative research methods applied in conducting the research are first discussed. Preliminary statistics of construction accidents involving ethnic minority construction workers will then be reported.