• Selected
• Entire List

Abstract:
The New South Wales Parliament has recently passed the Supreme Court Amendment (Referral of Proceedings) Act 2000 (NSW) mandating mediation or neutral evaluation without the consent of the parties. It has been argued that mandating an ADR process runs counter to its philosophy. This article canvasses the arguments for and against mandatory mediation and asks whether courts should be involved in promoting ADR programs.

dispute resolution, mediation, mandatory court orders to mediate

Abstract:
This article discusses and evaluates a teaching initiative conducted by the authors and their students in 2006. At the time, the authors were teaching in law schools in different States of Australia and were the coordinators of an elective subject, Dispute Resolution, in each school's undergraduate law curriculum. The two subjects had similar content but the class demographics and sizes, as well as the teaching structures and methodologies varied. The on-line negotiation exercise was a small part of the overall units, taking up about two weeks of the semester-long units, and comprising part of the students' summative assessment.

dispute resolution, negotiation, online negotiation, teaching negotiation, legal education

Abstract:
The issue of the appointment of judicial mediators has once again been raised - this time by the Victorian Attorney-General. But is the appointment of judicial mediators necessary at a time when managerial judging through active case management and lawyer led settlements are leading to the efficient disposition of cases in the civil courts? Part I of this article deals with defining judicial mediation then discusses why the judicial promotion of settlement is vital to the functioning of the judicial system. The paper then commences the detailed argument about the Constitutional validity of the appointment of judicial mediators and the legal and philosophical arguments that stem from that discussion. Part II of this paper will appear in the next edition of this journal and will conclude the discussion on Constitutional validity and discuss the positives and negatives of the appointment of judicial mediators. Finally, the conclusion will raise the issue of whether we need judicial mediators?

dispute resolution, judicial mediators, mediation

Abstract:
Two recent cases have once again drawn attention to the problem of drafting enforceable dispute resolution clauses in contracts. These cases have highlighted the fact that since the decision in 1995 in Elizabeth Bay Developments v. Boral Building Services some of the drafters of such clauses have seemingly learnt little from the way courts treat such clauses and the available drafting mechanisms that may allay the courts concerns and ultimately hold dispute resolution clauses enforceable. This paper will review the case law since the NSW Supreme Court's decision in Elizabeth Bay, juxtapose it with the alternative view of the Victorian Supreme Court in Computershare Limited v. Perpetual Registrars Limted & Ors and suggest a number of strategies for satisfying the legal requirements of the enforceability of dispute resolution clauses.

dispute resolution, law, good faith negotiation

Abstract:
The issue of the appointment of judicial mediators has once again been raised - this time by the Victorian Attorney-General. But is the appointment of judicial mediators necessary at a time when managerial judging through active case management and lawyer led settlements are leading to the efficient disposition of cases in the civil courts? Part I of this article appeared in the previous edition of this journal and dealt with defining judicial mediation after which it discussed why the judicial promotion of settlement is vital to the functioning of the judicial system. It then detailed the first phase of the argument about the Constitutional validity of the appointment of judicial mediators and the legal and philosophical arguments that stem from that discussion. In part II of this paper the discussion on the Constitutional validity of the appointment of judicial mediators is concluded together with a discussion of the positives and negatives of the appointment of judicial mediators. Finally, the conclusion will raise the issue of whether we need judicial mediators?

dispute resolution, judicial mediators, mediation

Abstract:
Remedies have provided a bar to the enforcement of dispute resolution clauses in contracts because courts have been unable to find an appropriate head of damages and have been reticent to order the equitable remedy of specific performance for fear that it will require constant supervision by the court making the order. This paper suggests that perhaps it is time to re-think whether damages and specific performance preclude the enforcement of dispute resolution clauses.

dispute resolution, remedies, law

Abstract:
Why academics prefer research over teaching.

Learning & teaching, tertiary education

Abstract:
A recent decision heard in the England and Wales Court of Appeal, puts parties and their lawyers on notice that only in exceptional circumstances will costs not follow the cause where the successful party has failed to participate in mediation. Further, the decision provides an insight into the factors considered by the court when deciding the issue of costs and sheds light on the burden of proof in such cases. It is only a matter of time before an Australian court is asked to consider the same issue.

dispute resolution, practice and procedure, costs orders in law

Abstract:
Costs ramifications for parties not mediating in good faith.

dispute resolution, good faith, mediation

Abstract:
Macquarie University's Centre for Dispute Assessment and Resolution (CeDAR) recently conducted the first ever mediation course in Fiji. The course was sponsored by the Fiji Employers Federation, the University of the South Pacific and Macquarie University and had a wide range of participants from industry, government, trade unions and the legal profession. Fiji already has voluntary and compulsory conciliation and arbitration as part of its Trade Disputes Act Cap 97 but a new Act of Parliament currently before the Fiji Parliament will seek to set up a compulsory system of mediation prior to any trade dispute being adjudicated. Culturally Fiji is no stranger to consensual problem solving. However, some variations to the Western model of mediation need to be considered for mediation to operate effectively in Fiji.

dispute resolution, mediation, mediation training, Fiji

Abstract:
Casenotes dealing with lawyers failure to comply with court ordered mediation that cost their clients the chance to settle and what happens when a person breaches a mediated agreement

Failure to comply with court ordered mediation, breaches of mediated agreement

Abstract:
These cases address the court's view on the admissibility of documents leading up to mediation and the behaviour of parties pursuant to the Farm Debt Mediation Act 1994 (NSW).

Admissibility of documents, Farm debt Mediation Act

Abstract:
A stay of proceedings sought to enable parties to mediate.

dispute resolution, mediation, law

Abstract:
Mediating in Australian Aboriginal communities requires some notable variations from the Western mediation model. This paper explores those variations.

dispute resolution, mediation, Australian Aborigines

Abstract:
A casenote on the landmark decision affecting the enforceability of dispute resolution clauses in contracts.

dispute resolution, contract law, good faith negotiation