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).

Not-for-profits and risk accountability : insuring the third sector

Not for profit organisations face significant challenges in managing organisational risk. In this regard not-for-profits are not unique but they are distinguishable from their 'for-profit' counterparts in that they are less likely to have the resources to find sufficient risk management strategies and plans, are very vunerable to cyclical changes in the insurance market and are not usually in a position to pass on the costs of increased premiums to third parties such as consumers of their services. This article explores the nature and extent of risks faced by the not-for-profit sector; the appropriateness and scope of risk management to reduce and manage the likelihood and incidence of risk; and the types of insurance and options to cover risks that materialise. It concludes with a recommendation for a potential course of action.

Anonymity and one-way authentication in key exchange protocols

Key establishment is a crucial cryptographic primitive for building secure communication channels between two parties in a network. It has been studied extensively in theory and widely deployed in practice. In the research literature a typical protocol in the public-key setting aims for key secrecy and mutual authentication. However, there are many important practical scenarios where mutual authentication is undesirable, such as in anonymity networks like Tor, or is difficult to achieve due to insufficient public-key infrastructure at the user level, as is the case on the Internet today. In this work we are concerned with the scenario where two parties establish a private shared session key, but only one party authenticates to the other; in fact, the unauthenticated party may wish to have strong anonymity guarantees. We present a desirable set of security, authentication, and anonymity goals for this setting and develop a model which captures these properties. Our approach allows for clients to choose among different levels of authentication. We also describe an attack on a previous protocol of Øverlier and Syverson, and present a new, efficient key exchange protocol that provides one-way authentication and anonymity.

Practice and Procedure. Self-executing order - construction - whether further judicial at required for self-executing order to take effect

In Mango Boulevard Pty Ltd v Spencer [2010] QCA 207, a self-executing order had been made in consequence of continuing default by parties to the proceedings in meeting their disclosure obligations. The case involved several questions about the construction and implications of the self-executing order. This note focuses on the aspects of the case relating to that order.

On IT governance structures and their effectiveness in collaborative organizational structures

Organizations today engage in various forms of alliances to manage their existing business processes or to diversify into new processes to sustain their competitive positions. Many of today’s alliances use the IT resources as their backbone. The results of these alliances are collaborative organizational structures with little or no ownership stakes between the parties. The emergence of Web 2.0 tools is having a profound effect on the nature and form of these alliance structures. These alliances heavily depend on and make radical use of the IT resources in a collaborative environment. This situation requires a deeper understanding of the governance of these IT resources to ensure the sustainability of the collaborative organizational structures. This study first suggests the types of IT governance structures required for collaborative organizational structures. Semi-structured interviews with senior executives who operate in such alliances reveal that co-created IT governance structures are necessary. Such structures include co-created IT-steering committees, co-created operational committees, and inter-organizational performance management and communication systems. The findings paved the way for the development of a model for understanding approaches to governing IT and evaluating the effectiveness for such governance mechanisms in today’s IT dependent alliances. This study presents a sustainable IT-related capabilities approach to assessing the effectiveness of suggested IT governance structures for collaborative alliances. The findings indicate a favourable association between organizations IT governance efforts and their ability to sustain their capabilities to leverage their IT resources. These IT-related capabilities also relate to measures business value at the process and firm level. This makes it possible to infer that collaborative organizations’ IT governance efforts contribute to business value.

The challenges of ethical decision making in an Australian school

The focus of this case study concerns Peter Davies, one of three Assistant Principals in a large Australian secondary school, who faces an ethical dilemma regarding a student discipline issue. It is an important case because it underscores the point that ethical decision-making for leaders is fraught with complexity and whatever decision is made, there will be implications for all parties concerned.

Service delivery framework : an architectural strategy for next-generation service delivery in business network

The next-generation of service-oriented architecture (SOA) needs to scale for flexible service consumption, beyond organizational and application boundaries, into communities, ecosystems and business networks. In wider and, ultimately, global settings, new capabilities are needed so that business partners can efficiently and reliably enable, adapt and expose services. Those services can then be discovered, ordered, consumed, metered and paid for, through new applications and opportunities, driven by third-parties in the global “village”. This trend is already underway, in different ways, through different early adopter market segments. This paper proposes an architectural strategy for the provisioning and delivery of services in communities, ecosystems and business networks – a Service Delivery Framework (SDF). The SDF is intended to support multiple industries and deployments where a SOA platform is needed for collaborating partners and diverse consumers. Specifically, it is envisaged that the SDF allows providers to publish their services into network directories so that they can be repurposed, traded and consumed, and leveraging network utilities like B2B gateways and cloud hosting. To support these different facets of service delivery, the SDF extends the conventional service provider, service broker and service consumer of the Web Services Architecture to include service gateway, service hoster, service aggregator and service channel maker.

Diversified service provisioning in global business networks

Companies and their services are being increasingly exposed to global business networks and Internet-based ondemand services. Much of the focus is on flexible orchestration and consumption of services, beyond ownership and operational boundaries of services. However, ways in which third-parties in the “global village” can seamlessly self-create new offers out of existing services remains open. This paper proposes a framework for service provisioning in global business networks that allows an open-ended set of techniques for extending services through a rich, multi-tooling environment. The Service Provisioning Management Framework, as such, supports different modeling techniques, through supportive tools, allowing different parts of services to be integrated into new contexts. Integration of service user interfaces, business processes, operational interfaces and business object are supported. The integration specifications that arise from service extensions are uniformly reflected through a kernel technique, the Service Integration Technique. Thus, the framework preserves coherence of service provisioning tasks without constraining the modeling techniques needed for extending different aspects of services.

The adoption of residential sustainability programs : lessons from the commercial sector

The article explains and compares sustainability programs available for use by residential and commercial premises; as well as the respective legal tenure frameworks of commercial and residential tenancies. It identifies that while the desire of commercial tenants drive the participation by landlords in these programs, residential tenants appear to be ignorant of sustainable measures. The article contends that the reason for this difference is rooted in the legal and social status of residential tenants. It explores the impact that secure tenure may have in promoting residential sustainability programs and concludes by observing that the lack of involvement of residential tenants in programs stems from the absence of tenure security, which prevents any long term cooperation between the parties.

SOA for business networks - service delivery framework

The next generation of SOA needs to scale for flexible service consumption, beyond organizational boundaries and current B2B applications, into communities, eco-systems, and business networks. In the wider and, ultimately, global settings, new capabilities are needed so that business partners can efficiently and reliably enable, adapt, and expose services where they can be discovered, ordered, consumed, metered, and paid for, through new applications and opportunities, driven by third parties in the global "village". This trend is already underway, in different ways, through various early adopter market segments. For the small medium enterprises segment, Google, Intuit-Microsoft, and others have launched appstores, through which an open-ended array of hosted applications are sourced from the development community and procured as maketplace commondities. In the corporate sector, the marketplace model and business network hubs are being put in place on top of connectivity and network orchestration investments for capitalizing services as tradable assets, seen in banking/finance (e.g. American Express Intelligent Marketplace), logistics (e.g., the E2open hub), and the public sector (e.g., UK DirectGov whole-of-government citizen services delivery).

Kiss

In an age of mobile phones, Facebook, Twitter and online dating, interactions in mediated environments often outnumber face to face encounters. Kiss is an interactive light artwork by artists Priscilla Bracks & Gavin Sade. Kiss reacts to people standing in front of the artwork looking at each other - the moment before kissing. Without interaction the work generates a seductive, ambient, red lighting display, that creates the restful sense of staring into a fire. A fleeting response of white light – like sparks flying in the air – occurs the moment before two faces touch. These sparks are visible in peripheral vision, but fade when the kissing couple turns to look at the work. This moment - as two people look at each other - is a primal moment when two people recognise each other. Face to face encounters with another person are a privileged phenomenon in which the other person's presence and proximity are strongly felt. Kiss does not respond to every instance of a kiss or a look. Its recognition algorithms are fussy, selecting some faces and not others. As in life it’s difficult to tell why sparks fly with some people but not with others. For some this will be felt as a glitch. “This machine should be part of my social life!” But it does promote trial and error, asking viewers to be intimate in public and look at each other for longer than otherwise socially normal. 10 minutes continuous eye contact is said in most cases to arouse sexual feelings in both parties. But even if we don’t look that long, a short time may be all that is needed to explore the face of the person we are looking at. We see that they are human like us. We experience beauty, difference, discomfort, perhaps even nervous laughing, before turning to a more intimate moment of recognition.

IT governance in collaborative organizational structures

Organizations today engage in various forms of alliances to manage their existing business processes or to diversify into new processes to sustain their competitive positions. Many of today’s alliances use the IT resources as their backbone. The results of these alliances are collaborative organizational structures with little or no ownership stakes between the parties. The emergence of Web 2.0 tools is having a profound effect on the nature and form of these alliance structures. These alliances heavily depend on and make radical use of the IT resources in a collaborative environment. This situation requires a deeper understanding of the governance of these IT resources to ensure the sustainability of the collaborative organizational structures. This study reports on the first stage of this initiative. It suggest the types of IT governance structures required for collaborative organizational structures. Semi-structured interviews with senior executives who operate in such alliances reveal that co-created IT governance structures are necessary. Such structures include co-created IT-steering committees, cocreated operational committees, and inter-organizational performance management and communication systems. The findings pave the way for the development of a model for understanding approaches to governing IT and evaluating the effectiveness for such governance mechanisms in today’s IT dependent alliances.

Rational avoidance of accountability

Anthony Downs public choice theory proposes that every rational person would try to meet their own desires in preference to those of others, and that such rational persons would attempt to obtain these desires in the most efficient manner possible. This paper will demonstrate that the application of this theory would mean that public servants and politicians would perform acts of corruption and maladministration in order to efficiently meet their desires. As such action is unavoidable, political parties must appear to meet the public demand for accountability systems, but must not make these systems viable lest they expose the corruption and maladministration that would threaten the government’s chance or re-election. It is therefore logical for governments to display a commitment for accountability whilst simultaneously ensuring the systems would not be able to interfere with government control or expose its flaws.

The traditional rationale of the arm’s length approach to transfer pricing : should the separate accounting model be maintained for modern multinational entities?

This article examines the current transfer pricing regime to consider whether it is a sound model to be applied to modern multinational entities. The arm's length price methodology is examined to enable a discussion of the arguments in favour of such a regime. The article then refutes these arguments concluding that, contrary to the very reason multinational entities exist, applying arm's length rules involves a legal fiction of imagining transactions between unrelated parties. Multinational entities exist to operate in a way that independent entities would not, which the arm's length rules fail to take into account. As such, there is clearly an air of artificiality in applying the arm's length standard. To demonstrate this artificiality with respect to modern multinational entities, multinational banks are used as an example. The article concluded that the separate entity paradigm adopted by the traditional transfer pricing regime is incongruous with the economic theory of modern multinational enterprises.

Advance pricing arrangements : an Australian Tax Office success or a legislative failure?

Australia’s domestic income tax legislation and double tax agreements contain transfer pricing rules which are designed to counter the underpayment of tax by businesses engaged in international dealings between related parties. The current legislation and agreements require that related party transactions take place at a value which reflects an arm’s length price, that is, a price which would be charged between unrelated parties. For a host of reasons, it is increasingly difficult for multinational entities to demonstrate that they are transferring goods and services at a price which is reflective of the behaviour of independent parties, thereby making it difficult to demonstrate compliance with the relevant legislation. Further, where an Australian business undertakes cross-border related party transactions there is the risk of an audit by the Australian Tax Office (ATO). If a business wishes to avoid the risk of an audit, and any ensuing penalties, there is one option: an advance pricing arrangement (APA). An APA is an agreement whereby the future transfer pricing methodology to be used to determine the arm’s length price is agreed to by the taxpayer and the relevant tax authority or authorities. The ATO views the APA process as an important part of its international tax strategy and believes that there are complementary benefits provided to both the taxpayer and the ATO. The ATO promotes the APA process on the basis of creating greater certainty for all parties while reducing compliance costs and the risk of audit and penalty. While the ATO regards the APA system as a success, it may be argued that the implementation of such a system is simply a practical solution to an ongoing problem of an inherent failure in both the legislation and ATO interpretation and application of this legislation to provide certainty to the taxpayer. This paper investigates the use of APAs as a solution to the problem of transfer pricing and considers whether they are the success the ATO claims. It is argued that there is no doubt that APAs provide a valuable practical tool for multinational entities facing the challenges of the taxation of global trading under the current transfer pricing regime. It does not, however, provide a long term solution. Rather, the long term solution may be in the form of legislative amendment.