Current Law Journal Content
Washington & Lee Law School
Current Law Journal Content
an index to legal periodicals
Australasian Dispute Resolution Journal
Volume 20, Number 2, May 2009
Costs of mediation v costs of proceedings, costs arguments as a qualified exception to confidentiality, and mediation media watch
The calamitous case of the cobbled courtyard
Medical negligence dispute resolution: A role for facilitative mediation and principled negotiation?
This article critically examines the potential of using facilitative mediation and principled negotiation to resolve medical negligence disputes. It argues that such methods of dispute resolution are a better means of resolving these complex disputes, in contrast to the conventional use of settlement negotiations, positional bargaining and litigation, since they are inherently capable of addressing the non-financial needs and interests of the parties directly involved in the dispute. However, the article also recognises there can be problems with using these methods of dispute resolution due to the complex power relations between the parties involved. Nevertheless, it ultimately concludes that the benefits of using facilitative mediation and principled negotiation outweigh their possible limitations in the medical negligence arena.
No longer neutral: Practitioner power in compulsory (family) dispute resolution
Nigel W Polak
This article explores the ethics of power in compulsory dispute resolution. Recent changes to the Family Law Act 1975 (Cth) mean that the traditional ethical bastions of voluntary participation and mediator neutrality are no longer applicable to contemporary family dispute resolution. In addition, practitioners are required legally to assert expert power in relation to the "best interests" principle and make decisions as to the "genuine effort" made by participants. While "child-focused" and "child-inclusive" practices are current trends towards establishing ethical practice. it is argued that an ongoing stance of reflexivity towards individual and collective practice is required.
Humour in mediation: Sparking laughter through improvisation
Kathy Douglas and Andrew Bayly
In mediation practice mediators develop interventions to assist parties in the exploration of their conflict. Humour is one method of attempting to ease tension between parties and engender positive emotions in the mediation. However, not all mediators are comfortable using humour in the mediation setting. Dramatic improvisation, the art of creating stories without preparation, can incorporate comic elements. Arguably, learning about improvisation can assist mediators to trust their comic instincts and include humour in the interventions that they use in mediation. This article suggests various improvisation games to assist mediators to develop the intervention of humour in their practice.
Mediation and facilitation—commonalities and differences
Experience with mediation and facilitation is used to draw together common threads and to examine some areas of significant differences. Facilitation is broadly viewed as including traditional facilitation of groups wishing to explore issues of concern, as well as chairing consultative committees and public meetings, where there is often significant controversy. While the process and management of different forums take quite different forms, the importance of the principles of conflict management, seen through the lens of empowerment, are drawn out in examples. Perhaps the key difference between mediation and facilitation arises through the presence of the client, the client's understanding of the purpose of consultation, and the way the facilitator's duty to the client is perceived by all parties.
Not happy and letting you know it
This article explores some of the issues that relate to complaint handling. Using a broad lens that catches the complex human experience of complaining, as well as the more strategically designed systemic approach to complaint handling, the reader is left with a comprehensive perspective. The personal and the professional come together to take society a little further down the road of peace-making.
Mediation in the amended civil justice reform of Hong Kong
Sarah E Hilmer
Hong Kong has just enforced its new Civil Procedure Rules on 2 April 2009. The Working Party of the Civil Justice Reform put forward a number of mediation-related recommendations in its Interim Report in 2001. The Final Report of 2004 put forward six proposals, including mandatory mediation. However, out of these six proposals, only three have been accepted. Mandatory mediation has not been supported at this stage. This article discusses the initial six proposals as well as the final recommendations and provisions.
Conflict and Dispute Resolution: A Guide for Practice by Mieke Brandon and Leigh Robertson
The Family Law Handbook by Maree Livermore