An analysis of dispute review boards and settlement mediation as used in the Australian construction industry

If there is a silver lining to the adversarial, dispute-prone nature of the building and construction industry, it can be found in the concomitant rise of innovative dispute resolution mechanisms. Time, cost and relationship concerns have meant that the formal adversarial system holds little appeal for disputing parties. As these alternative forms of dispute avoidance/resolution have matured in Australia over the last 20 years, attention has turned to the key characteristics of each process and their suitability to the building and construction industry. This article considers the role of dispute review boards (DRBs) and mediation as two alternative methods for avoiding/resolving disputes in the construction industry. Criteria are established for evaluating the efficacy of these procedures and their sensitivity to the needs of construction industry disputants. The ultimate conclusion reached is that DRBs represent a powerful, yet underutilised dispute resolution tool in Australia, and possess many industry-specific advantages that more traditional forms of alternative dispute resolution (particularly mediation) do not provide.

Increasing relevance and interest : teaching environmental and planning law to built environment students

A new approach was taken to delivering a challenging "stewarship of land" unit to over 350 predominantly first year built environment students stewardship. The new approach involved incorporating environmental and planning law into the syllabus, exposing students to a wide range of statutes, selecting legal cases according to a et of criteria and revisiting the material using different modes of delivery and teaching resources. To evaluate the effectiveness of the new approach, the students were surveyed to elicit their learning experience and preferences. The survey found that most students perceived learning about environmental and planning law, including legal cases, worthwhile.----- Areas identified by the surcey for improvement included the perception by some students that: environmenatl and planning law is irrelevant to their discipline and future caree; studying law is dull and sometimes daunting; and the prescribed reading could be omitted.----- To address student perceptions, it is proposed to reorder the topics commencing with local, charismatic topics, while explanding international content and cases, to enlarge and enhance the repertoire of video clips to include sites of legal cawses and development projects, and to reformat the online weekly quizzes to promote reading of primary material.----- Overall, the approach to teaching environmental and planning law to built environment students, including the criteria for selecting legal cases, described in this paper, was found to be effective.

Are the financial services external complaints resolution schemes subject to judicial review?

In Australia seven schemes (apart from the Superannuation Complaints Tribunal) provide alternative dispute resolution services for complaints brought by consumers against financial services industry members. Recently the Supreme Court of New South Wales held that the decisions of one scheme were amenable to judicial review at the suit of a financial services provider member and the Supreme Court of Victoria has since taken a similar approach. This article examines the juristic basis for such a challenge and contends that judicial review is not available, either at common law or under statutory provisions. This is particularly the case since Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd (2006) 157 FCR 229; 60 ACSR 372 decided that the jurisdiction of a scheme is derived from a contract made with its members. The article goes on to contend that the schemes are required to give procedural fairness and that equitable remedies are available if that duty is breached.

District Court debt decisions

This article examines the distinction between a "liquidated demand" and a claim for "unliquidated damages" and the implications of that distinction on the procedure for obtaining a judgment if the defendant fails to file a notice of intention to defend.

A nod to consent : in step with the UCPR

This article considers the decision of Robin DCJ in CTP Manager Limited v Ascent Pty Ltd [2011] QDC 74 and the likely impact of the decision on the practice in the court registries in similar circumstances.

Law student psychological distress, ADR and sweet-minded, sweet-eyed hope

Empirical studies conducted by both Australian and American researchers have established law school’s causative role in increasing law student psychological distress. The purpose of this article is to highlight the role that law school curriculum might play in addressing this problem. By utilising lessons from the field of positive psychology (and in particular hope theory) a first-year law subject at the Queensland University of Technology has been specifically designed to promote law student well-being. Traditional legal education and pedagogy do not hold the answers for addressing this social phenomenon. A first-year curriculum that introduces students to alternative dispute resolution, non-adversarial justice, resilience and the positive role of lawyers in society may go some way to addressing the law student well-being challenge.

Regulating virtual environments

Online gaming environments feature a number of challenging regulatory issues; a diverse player base, uneven power relationship, and lack of real dispute resolution mechanisms. By conducting an ethnographic study of the online environment Eve Online, and using as a comparative the offshore gaming industry, I consider how we might look to regulate, and resolve disputes within, online gaming environments. In doing so, I adopted a novel approach to the study of online gaming environments - that of norms - which gave significance not only to the terms of service dictated by platform providers and their legal advisors, but also to the social and ludic limitations and affordances players constructed themselves. Finally, through an account of the evolution of regulatory mechanisms and dispute resolution in the offshore gambling industry, I consider how an environment which features much in common with online gaming environments overcame a number of these challenges within the last 10-15 years, and what lessons might be taken from those experiences and applied to contemporary online gaming environments.

The "new advocacy" and the ermergence of lawyer representatives in ADR

This article traces the emergence of “the new advocacy” role for lawyers, that of “dispute resolution advocacy”, describing the role of legal practitioners when representing clients in negotiation, mediation and conciliation processes. The dispute resolution models they may encounter and the different types of assistance that lawyers can provide to their clients in such contexts will be discussed. Whether “dispute resolution advocacy” falls under the umbrella of “non-adversarial practice” or is a separate and distinct role will also be explored, in light of the professional obligations of lawyer representatives, particularly the duty of loyalty to their clients.

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.

Litigating law of the sea disputes using the UNCLOS Dispute Settlement System

The interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS) may be the source of many disputes. UNCLOS introduced an à la carte menu for dispute settlement with a number of options for international dispute resolution, including a compulsory procedure entailing binding decisions. While drafting this ambitious and complex system of dispute settlement, the drafters had to negotiate many delicate compromises to secure a system for the uniform interpretation of the Convention. The aim of this paper r is to explore why litigation using the UNCLOS dispute settlement system is, or is not, a preferred mode of settlement for law of the sea disputes.

Analysis of construction dispute review boards

The construction industry has long been burdened with inherent adversarial relationships among the parties and the resulting disputes. Dispute review boards (DRBs) have emerged as alternatives to settle construction-related disputes outside courts. Although DRBs have found support in some quarters of the construction industry, the quantitative assessment of the impact of DRBs has not been adequately addressed. This paper presents the results of a research project undertaken to assess the impact of DRBs on the construction program of a large-scale highway agency. Three dimensions of DRB impact were assessed: (1) influence on project cost and schedule performance, (2) effectiveness of DRBs in preventing and resolving construction disputes, and (3) costs of DRB implementation. The analyses encompass data from approximately 3,000 projects extending over a 10-year period (2000–2009). Quantitative measures of performance were developed and analyzed for each category. Projects that used DRBs faced reduced costs and schedule growth (6.88 and 12.92%, respectively) when compared to non-DRB projects (11.53 and 28.96%). DRBs were also found to be effective in avoiding and settling disputes; the number of arbitration cases reduced consistently after DRB implementation, and DRBs have a success rate of 97% in settling disputes for which DRBs were used. Moreover, costs of DRBs were found to comprise a relatively small fraction (i.e., approximately 0.3%) of total project budgets. It was concluded that DRBs were effective dispute prevention and resolution alternatives with no significant adverse effects on project performance.

Why ADR must be a mandatory subject in the law degree : A cheat sheet for the willing and a primer for the non-believer

The profession of law is deeply steeped in tradition and conservatism, which influences the content and pedagogy employed in law faculties across Australia. Indeed, the practice of law and the institutions of legal education are in a relationship of mutual influence; a dénouement which preserves the best aspects of the 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, the authors lay down a challenge to legal education orthodoxy and a call to arms for legal academic progressivists: that alternative dispute resolution (ADR) should be a compulsory, stand alone subject in the law degree. The authors put forward 10 simple arguments as to why every law student should be exposed to a semester-long course of ADR instruction.

Governing virtual worlds : to what extent is it possible to empower players and preserve their rights in virtual worlds, and what is the best method of doing so?

In this paper the author considers the possibilities for establishing democratic governance in virtual worlds. He looks at the freedoms currently available to players in “Second Life”, contrasting these to those established in Raph Koster’s “A Declaration of the Rights of Avatars”, and assess whether some restrictions are more necessary in game spaces than social spaces. The author looks at the early implementations of self-governance in online spaces, and consider what lessons can be taken from these, investigating what a contemporary democratic space looks like, in the form of “A Tale in the Desert”, and finally considers how else we may think of giving players more rights in these developing social spaces.

Analysis of construction dispute review boards

This paper presents the results of a research project undertaken to assess the impact of DRBs on the construction program of a large scale highway agency. Three dimensions of DRB impact were assessed: (1)influence on project cost and schedule performance, (2) effectiveness of DRBs in preventing and resolving construction disputes, and (3) costs of DRB implementation. The analyses encompass data from approximately 3,000 projects extending over a 10 year period (2000-2009).