(Alternative) Dispute Resolution and Workplace Bullying

We define workplace abuse as including bullying and harassment and use the term ‘target’ interchangeably with (individual applicant) parties.

This is largely a reflection of legislation governing employment and other civil litigation, eg, Fair Work Act 2009 (Cth) (‘the FW Act’) s 368, s 505, s 526, s 595, s 739, the Federal Circuit Court Act 1999 (Cth) s 34, and s 53A Federal Court Act 1976 (Cth) (‘the FC Act’).

Even where unsuccessful conciliations lead to matters listed for arbitration, tribunals often make further attempts to resolve matters by ADR before hearing.

For example, Sternlight suggested in 2000 that the phrase ‘ADR’ was not useful because ADR processes grouped together are more different than similar. In 2009, though, she suggested that ‘ADR’ was helpful to describe dispute resolution processes that are not litigation because others frequently group these processes together: Sternlight Jean R , ‘Lawyerless Dispute Resolution: Rethinking a Paradigm’ (2009) 37(1) Fordham Urban Law Journal 381.

‘ADR’ is also the terminology typically used in the legislation cited at n 2 above, and by lawyers working in this space.

Tyler Tom R , ‘The Quality of Dispute Resolution Processes and Outcomes: Measurement Problems and Possibilities’ (1989) 66 Denver University Law Review 419.

Ibid 420.

Ibid 423–4.

Ibid 429.

Ibid 429.

Ibid 432.

Ibid 430.

Ibid 431.

Jarvis Dominique , ‘Mediation for Harassment Complaints: What Happens to the Parties' Relationship?’ and Deakin Ria Walden Roger Hoel Helge , ‘Reconciling Mediation, Bullying and Harassment: A Mediator Perspective’ (Papers presented at the 9th International Conference on Workplace Bullying and Harassment, Milan, 17–20 June 2014).

For example, the FC Act, s 53A(1)(c) and the FW Act, s 592.

Spencer David , ‘Liability of Lawyers to Advise on Alternative Dispute Resolution Options’ (1998) 9 Australian Dispute Resolution Journal 292.

Callaghan Peter , ‘Roles and Responsibilities of Lawyers in Mediation’ (2007) 26 The Arbitrator & Mediator 39.

Creighton Breen Stewart Andrew , Labour Law (Federation Press, 5th ed, 2010) 33.

Ibid 130.

FW Act s 592.

FW Act s 596.

Sternlight , above n 4, 409.

Ibid 409–10.

For example, s 53B of the FC Act.

Limbury Alan , ‘Should Mediation be an Evidentiary “Black Hole?”’ (2012) 35(3) UNSW Law Journal 915.

Law Council of Australia, ‘Guidelines for Lawyers in Mediations’ (Research Discussion Paper, 2011) 6–7.

Menkel-Meadow cited in Tyler , above n 6, 420, estimates that over90 percent of civil cases are settled in this way.

Rundle Olivia , ‘Lawyers’ Perspectives on “What is Court-connected Mediation for?”' (2013) 20(1) International Journal of the Legal Profession 36.

Ballard Allison Easteal Patricia , ‘Australia's National Anti-Bullying Jurisdiction: Paper Tiger or Velvet Glove’ (2016) 5(1) Laws I found a high resolution (32%) of bullying complaints under the FW Act; Report to the Fair Work Ombudsman 1st quarter 2015–16 (July–Sep 2015) 2–3 <https://www.fwc.gov.au/about-us/reports-publications/quarterly-reports>.

Attorney-General's Department, ‘A Strategic Framework for Access to Justice in the Federal Civil Justice System: Report by the Access to Justice Taskforce’ (Canberra, 2009); Astor Hilary Chinkin Christine , Dispute Resolution in Australia (LexisNexis, 2nd ed, 2002); Attorney-General's Department ‘Guidance Note No 12’ (Canberra, undated).

Callaghan , above n 17, 39.

Dolder Cheryl , ‘The Contribution of Mediation to Workplace Justice’ (2004) 33 Industrial Law Journal 321.

Rundle Olivia , ‘Lawyers’ Participation in Mediation and Professional Ethical Disposition' (2015) 18(1) Legal Ethics 46, 46.

Ibid 47.

Astor Chinkin , above n 30, 347.

Sourdin Tania , ‘Good Faith, Bad Faith? Making an Effort in Dispute Resolution’ (2012) 12(1) Victoria University Law and Justice Journal 19–29.

Einarsen Stale Mikkelsen Eva Gemzoe , ‘Individual Effects of Exposure to Bullying at Work’ in Einarsen (eds), Bullying and Emotional Abuse on the Workplace: International Perspectives in Research and Practice (Taylor & Francis, 2003) 127.

Haeseler Lisa , ‘Themes of Coping in the Spectrum of Family Violence Abuse: A Review of the Literature’ (2013) 10(1) Journal of Evidence-Based Social Work 26. This is recognised by the Family Law Act 1975 (Cth) at s 601 which exempts matters with family violence from family dispute resolution (‘FDR’): S 601 (9).

Baylis Claire Carroll Robyn , ‘Power Issues in Mediation’ (2005) 7(8) ADR Bulletin 1.

Astor Chinkin , above n 30, 345.

Tyler , above n 6, 433.

Kyle Louise Jackson Keith , ‘Working it out: Your guide to dispute resolution’ (Victorian Law Foundation, 2009) 5.

Tyler , above n 6, 431.

McLay Leah , ‘Workplace Bullying: To Mediate or Not?’ (2009) 11(1) ADR Bulletin 1.

Ibid 2.

While respondents may not be representative of all ADR participants, our aim was to identify potential problems and solutions in bullying-related ADR. Relevant jurisdictions included the FWC, the Federal Circuit Court, and the Federal Court of Australia. As per ethics approval, participants received an information sheet and a consent form prior to participation.

Rundle , above n 33, 47.

This reflects findings in Soundin Tania , ‘Poor Quality Mediation – A System Failure?’ (2010) 11(8) ADR Bulletin 163–9, 167.

Law Council of Australia, above n 26, 6–7.

For example, see Sternlight , above n 4, 390–1.

Ibid 404–5.

Sourdin , above n 48, 168.

Rundle , above n 33, 47.

As reported to practitioner author. This reality is reflected in the requirement for ADR practitioners to disclose existing or prior relationships and any party: Duffy James , ‘Empathy, Neutrality and Emotional Intelligence: A Balancing Act for the Emotional Einstein’ (2010) 10 QUTLJ 44, 51.

In Sourdin's sample, above n 48, 163, see, eg, ‘I can't really answer any of your questions – I wasn't even allowed in the room. It was like a boys [sic] club. I was so angry – I don't know if I will ever get over how I was treated’.

This reflects the practitioner author's experience of target perceptions of (mediator) bias.

Rundle , above n 33, 51.

Douglas Kathy Field Rachael , ‘Therapeutic Jurisprudence: Providing Some Answers to the Neutrality Dilemma in Court-Connected Mediation’ (3rd International Conference on Therapeutic Jurisprudence, 7–9 June 2006, Perth, Western Australia).

As experienced by practitioner author.

Sourdin , above n 48, 166–7; Douglas Field , above n 58,4, 8; ABC TV, ‘Workplace Bullying Litigation – A nasty war of attrition’, The Drum, 27 July 2012 (Luke Williams) <http://www.abc.net.au/news/2012-07-27/williams-workplace-bullying/4156378>.

See, eg, s 272 of the Work Health and Safety Act 2011 (Cth) which provides that agreements/contracts purporting to exclude, limit or modify the operation of the Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void. See also s 234 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).