The Promise and Reality of Online Dispute Resolution in Australia (5/10/13) Chinthaka Liyanage, Tania Sourdin It is clear that Online Dispute Resolution (ODR) has grown significantly in response to local and international factors within Australia over the past decade. This growth is partly attributable to a healthy Alternative Dispute Resolution (ADR) environment within Australia. The use of ADR in Australia is widespread and all Courts and Tribunals now have the power to mandatorily refer disputes to ADR processes.
Beyond Adjudication: Resolving International Resource Disputes in an Era of Climate Change (9/26/11) Anna Spain Climate change is one of the greatest emerging threats to global peace and security. Among other impacts, climate change will exacerbate the scarcity of water, food, and other natural resources essential to human survival. One concern is that as these resources become scarcer, the frequency and severity of international disputes will increase. Thus, developing effective means for resolving international resource disputes is of critical global importance.
Holistic Law Approach To Indigenous Incarceration (10/18/10) Michelle Brenner This paper highlights the journey of peace building in the context of prison rehabilitation. The intention of this paper is to attempt to align the cultural, spiritual, psychological and physical aspects of indigenous conflict resolution with a practical peace building application in one of the growing industries in the world, the prison system.
Australia Legislates More Mediation Muscle in Native Title Disputes (11/10/09)
In an effort to reduce the backlog of 500 native title claims, the Australian parliament has amended the Native Title Act to strengthen mediation and give the Federal Court power over the mediation process and the ability to deal with recalcitrant parties. One senator raised concerns about mediators being given coercive powers by the amendment, especially since the legislation does not define who can be a mediator or require any particular qualifications or accountability, while other senators felt the amendments did not go far enough.
Australian Court Awards Mediation Expenses as Costs of Proceedings (7/07/09)
The New South Wales Court of Appeals in Newcastle City Council v. Wieland, NSWCA 113 (NSW, Australia 2009), concluded that court-ordered mediation expenses generally should be treated as legitimate costs of the proceedings, since the mediation is a required step. If the parties wish to ensure that each pays its own mediation costs, they must make that clear by agreement.
A report on mediation in the Supreme and County courts in Australia shows that use of mediation is steadily increasing. All civil cases before the Supreme Court are now being sent to mediation, where judge-led mediations are being used. A pilot mediation program in Magistrates Court has been extended and expanded from all cases under A$10,000 to all those under A$40,000. The author of the report noted that 80% of mediation participants are satisfied with the process, but that some cases need to be referred to mediation earlier.
Cricket Council Considering Use of Mediation Between Players (9/09/08)
Australia is pressing the International Cricket Council to include a mediation process in cases of racial conflict among players, following the Australian Football League which introduced a mediation code and won a U.N. award. Under Cricket Australia’s proposal, mediation would be given a chance to bring reconciliation between bickering players, and the matter would only proceed to a formal tribunal if mediation was not successful.
Litigation Funding of Smaller Parties Provides Mediation Counterweight (6/18/08)
A litigation funding company in Australia provides resources in carefully selected cases to individuals and small businesses involved in disputes with larger entities who may try to use their advantage in resources to obtain procedural wins or force unfair settlements. The funding company sees itself as helping to level power imbalances, but selects only cases it feels are likely to generate a good return. The managing director believes mediation is the best option for resolving business disputes, but that mediation works better when the smaller party has options.
Victoria, Australia Expanding Court-Connected Mediation (6/06/08)
Australian Supreme and County Courts will be able to send cases to mediation for the first time in a pilot project being started in Victoria, which will include large commercial disputes. Based on a Canadian model, senior judges will be involved to give the mediation process their imprimatur. The project is allocated A$3.7 million in the current budget package for the judicial system. In addition, the budget includes a A$5.8 million expansion of the mediation program in Magistrate Court and A$6.2 million to expand alternative dispute resolution regionally in Victoria.
Bond Newsletter (4/07/08) Geoff Sharp Bond University's eagerly awaited Dispute Resolution Centre's April Newsletter is just out!Edited by John Wade, the letter always delivers sophisticated content for the experienced mediator.There's a good article on Overconfidence at mediation and in a follow up to my popular post The Secrets of Successful (and Unsuccessful) Mediators - a completed Questionnaire for Advanced Mediators that John gives to experienced mediators in his regular Advanced Mediation Courses about what they see and do...
Mediation Central to Civil Justice Reforms in Victoria, Australia (4/07/08)
Australia’s longest-serving attorney general is urging that mediation “take center stage” in the reforms of Victoria’s legal system which are under way. The Victorian Law Reform Commission proposed introducing pre-action protocols, which may include mandatory mediation, in recommendations presented to the attorney general.
Australian Agency Uses Mediation to Assist Small Businesses (12/20/07)
The Victorian Small Business Commission uses its broad investigative powers and mediation to end unfair market practices and bullying of small businesses by larger companies. The Australian agency has increasingly focused on franchising relationships, along with retail tenancy disputes and other contract issues. The Commission encourages mediation as a way to resolve conflicts without necessarily ruining relationships. The Commission has dealt with 4,000 complaints since the office opened in 2003 and resolved about 80% before or at mediation. The Commission also encourages companies to avoid conflict by utilizing specified practices to sustain good working relationships.
The Ok Tedi Negotiations: Rebalancing the Equation in a Chronic Sustainability Dilemma (8/29/07) Peter Adler Between November 2005 and June 2007, a team from The Keystone Center helped organize and implement a multiparty negotiation process aimed at increased redress for people affected by river contamination from the Ok Tedi Mine in Papua New Guinea (PNG). Ok Tedi is often cited as one of the worst man-made environmental disasters in the world. It is also a true sustainability dilemma. The mine produces 20% of PNG’s gross domestic product, but it has also disrupted the traditional food webs and lives of more than 50,000 people by putting 90,000 tons of rock waste and tailings per day into the Fly River system. After 18 months of effort, a major benchmark was accomplished. Delegates of the nine affected regions along the river, the mining company, the government, and others concluded a Memorandum of Agreement (MOA) that will ultimately give the people in the impacted area about 1.1 billion kina (roughly US$350 million) in funds, projects, and services.
Persuasion in Negotiation and Mediation Article by John Wade (8/20/07) Geoff Sharp Prof. John Wade's latest article on Persuasion in Negotiation and Mediation is fresh out today.Typically, it's 30 something pages are brimming with generous take-aways.John provides a framework for common patterns of behaviour and persuasion observed in high conflict negotiations in civil and family disputes, often including legal representatives.The article sets out:• Some introductory boundaries to the topic of “persuasion”• A composite model of a persuasive lawyer...
West Australia Mediating Serious Criminal Cases (8/06/07)
Western Australia’s Supreme Court began a pilot program to mediate criminal cases last November, and is now expanding its “criminal case conferencing” program by covering more serious crimes, including murder and armed robbery, and appointing a second mediator. Mediation occurs only with the consent of the accused and victims (or secondary victims in the case of murder). While possible outcomes of mediation include agreements to substitute charges, obtaining admissions that will shorten the trial, and solutions that avoid trial altogether, the program is not plea bargaining. Further, as with civil mediation, mediation communications cannot be used in any later trial and the mediation is entirely separate from the court proceedings. The Supreme Court is the highest court in the state and deals with serious criminal charges and large civil cases.
The Alliterative Allure of Prof. John Wade (3/19/07) Geoff Sharp I mention Prof. John Wade a lot in this blog for a couple of reasons.
First, he is wonderfully knowledgeable about all things mediation, but more than that - he is one of my favorite types of people - he is a list junkie... he has 5 ways to do this, 10 ways to do that...
Prof. Wade's lists are adorned with alliterative titles like Dobermans and Diplomats (a list of 17 impasse breaking strategies) or How to respond when eager, expensive, entrenched expert egos escalate enmity (a list of...
Australian Reinsurance Contracts Increasingly Include Mediation Clauses (11/14/06)
With arbitration becoming more like litigation, more reinsurers in Australia are turning to clauses in their contracts with insurers that require disputes to be resolved through mediation or expert determination. The trend is toward including both mediation and arbitration clauses in reinsurance contracts, with arbitration occurring only if mediation fails fully to resolve a dispute. Australian courts are encouraging parties to use mediation, which influences the way contracts are drafted. However, parties need to understand the benefits and limitations of mediation and other forms of alternative dispute resolution before incorporating the provisions in contracts. Reinsurers may be more comfortable incorporating mediation clauses in contracts with sophisticated insurers and relying on arbitration provisions with those less sophisticated.
Australia Selects Mediation Firm for Grocery Industry (9/20/06)
The Australian government has selected a firm to provide mediation services throughout the country to assist the Produce and Grocery Industry Ombudsman. The Produce and Grocery Industry receives subsidized dispute resolution services under its Code. The mediation firm’s contract is overseen by the Department of Industry, Tourism and Industry, which is instituting a nationwide public awareness campaign of the Ombudsman and the Code.
Mediation Growing in Asia Pacific Region (9/06/06)
Participants from India, Australia, Malaysia, Japan, Hong Kong, Cambodia, Vietnam and the Philippines attended the Asia Pacific Conference on Contemporary Trends in Mediation and Arbitration in Kuala Lumpur in mid-July. The keynote address by Malaysian Chief Justice Ahmad Fairuz stated that his country is considering mediation legislation which would cover both voluntary and court-directed mediation in order to reduce court backlogs. The Chief Justice emphasized that courts around the world struggle to keep up with expanding caseloads and noted the successful use of mediation in Singapore, the United Kingdom, Canada and Australia. The conference was organized by the International Islamic University Malaysia and an arbitration center.
Mediation Avoids Australian Court Battle Over Corporate Assets (8/09/06)
An intense three-day mediation resulted in the return to Huon Corporation of business assets by the company’s managing director, Charles Shultz. Mr. Shultz had transferred the assets to private trusts while putting Huon Corporation in receivership last month. The return of the assets will enable the company to satisfy obligations to employees of its three businesses and potentially to sell the businesses as going concerns. The successful court-ordered mediation avoided a costly pending action in the Australian Supreme Court.
Cleaning Up the Schoolyard (10/13/03) Sue Farley The classroom isn’t the only place in the school community where tension can mount. Whether it’s in the grounds, the staff room, the board room or even at home, the staff, pupils and management provide a fertile environment for dysfunction to manifest and simmer away in.
Promoting Australian ADR Abroad (5/13/02) Sandra Purser Australian mediators and alternative dispute resolution centres are taking a leading role in encouraging the use of dispute resolution techniques in the Asia-Pacific region.
To take a case in point, the Dispute Resolution Centre at Bond University, initially at the invitation of the Australian Government and more recently as a result of its own efforts, has been actively promoting the adaptation of mediation techniques for use in Indonesia.
Mediation is underway between a South Australian council and its chief executive officer after he resigned in protest against the council raising a rainbow flag during an Adelaide gay and lesbian festival. read
The referees overseeing the Bingham Cup last week were re-named “Conflict Resolvers,” in a legal twist that had Folklaw prick up its ears. Chad Burnell assistant director – legal at the Australian Sports Commission was a referee at the Bingham Cup. He told Folklaw that the spin on the referee title came from the t-shirt sponsor, mediation firm Negocio Resolutions. “When [the referees] saw it we all had a chuckle but that name actually stuck throughout the tournament. It got a laugh from the players as well,” he said. “I guess it was a light-hearted touch to poke fun at us in terms of what we actually do because, at the end of the day, rugby is a game of conflict and we try to resolve it the best we can.” The Bingham Cup is an international LGBIT tournament that runs every two years. This year around 1,000 players from 15 countries came to Sydney to participate. read
Bitter and costly court battles between warring former spouses could be minimised thanks to a new family mediation service being trialled at Queensland University of Technology health clinics. Its aim, QUT family dispute Resolution Practitioner Jennifer Felton said, is to minimise the damage caused to children caught between divorcing parents by cutting down on time spent squabbling before a magistrate. She said negotiations before a qualified mediator gave former couples the opportunity to rationally resolve problems arising from their separation, without the added stress of doing it in a courtroom. "Mediation and family dispute resolution is increasingly used in Australia and offers a much more beneficial way of parents making decisions than using the legal system to argue against each other," she said. read
THE Warrnambool Cricket Umpires’ Association (WCUA) has had a minor win in its bid to retain control of umpiring appointments and development in the region. WCUA officials revealed they had secured a mediation session with the Warrnambool and District Cricket Association (WDCA) over a dispute stretching back to April. The two organisations have been at loggerheads since the WDCA announced it would seize control of the management and training of umpires. read
The Human Rights Commission says mediation will be attempted in a bid to resolve a dispute involving a group of foreign-trained doctors. About 40 doctors have passed exams enabling them to work in New Zealand, but are struggling to get first-year hospital jobs. Doctors from countries with different health systems must pass an exam before being able to apply for the vital training jobs. They complained that they are excluded from applying amid pressure for the jobs from a growing number of New Zealand medical graduates. The commission will say only that it will facilitate a confidential mediation process. read
THE Australian Taxation Office is stepping up its push to avoid costly court actions with big businesses and wealthy people. The ATO has told a landmark Productivity Commission review that it is increasingly using alternative dispute resolution -- which uses methods such as mediation by retired High Court and Federal Court judges to avoid resorting to litigation -- in the early stages of tax disputes considered to be "high risk" involving large businesses, high net-worth individuals and their private groups. read
A cricket fan who was found with a pet pig at the Gabba during the first Ashes test has agreed to undergo mediation with the RSPCA. Australian cricket fan David Gunn, 33, was charged with animal cruelty after the pig was allegedly smuggled into the Brisbane sportsground with its snout taped shut and disguised as a baby. Gunn was found holding the 10-12kg domestic pig, named Ash, on the first day of the test match between Australia and England in November. The Brisbane Magistrates Court heard on Wednesday that the case had been referred to mediation. read
TECOMA protesters and McDonald's have been ordered to go to mediation to settle their dispute. McDonald's sought a permanent injunction against the protesters, dubbed "The Tecoma Eight", which would mean none of the named people would be able to set foot on the restaurant site. Justice Kyrou extended the injunction stopping protesters from trespassing or blocking workers from entering the site. Last week McDonald's dropped its claim for damages against the Tecoma Eight. McDonald's Australia spokeswoman Skye Oxenham confirmed the company was no longer pursuing damages in the legal proceedings but would still seek legal costs incurred so far. No Macca's spokeswoman Simone Patterson said the Tecoma Eight faced financial ruin if made to pay legal costs. "At that mediation there will be an opportunity to discuss any issues concerning the injunction, as well as the matter of legal costs," Ms Patterson said. read
Gina Rinehart, after failing to persuade an Australian judge to have a family dispute over a multibillion-dollar trust resolved by an arbitrator, won her bid for a final mediation attempt. Supreme Court Justice Patricia Bergin in Sydney today dismissed Rinehart’s bid to stop the trial and refer the dispute to arbitration. Bergin granted Rinehart’s request for mediation, to be held before Sept. 26, and if the dispute isn’t resolved the judge scheduled a five-day trial to start Oct. 8, a week later than originally planned. read