We define workplace abuse as including bullying and harassment and use the term ‘target’ interchangeably with (individual applicant) parties.
2.
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’).
3.
Even where unsuccessful conciliations lead to matters listed for arbitration, tribunals often make further attempts to resolve matters by ADR before hearing.
4.
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: SternlightJean R, ‘Lawyerless Dispute Resolution: Rethinking a Paradigm’ (2009) 37(1) Fordham Urban Law Journal381.
5.
‘ADR’ is also the terminology typically used in the legislation cited at n 2 above, and by lawyers working in this space.
6.
TylerTom R, ‘The Quality of Dispute Resolution Processes and Outcomes: Measurement Problems and Possibilities’ (1989) 66Denver University Law Review419.
7.
Ibid420.
8.
Ibid423–4.
9.
Ibid429.
10.
Ibid429.
11.
Ibid432.
12.
Ibid430.
13.
Ibid431.
14.
JarvisDominique, ‘Mediation for Harassment Complaints: What Happens to the Parties' Relationship?’ and DeakinRiaWaldenRogerHoelHelge, ‘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).
15.
For example, the FC Act, s 53A(1)(c) and the FW Act, s 592.
16.
SpencerDavid, ‘Liability of Lawyers to Advise on Alternative Dispute Resolution Options’ (1998) 9Australian Dispute Resolution Journal292.
17.
CallaghanPeter, ‘Roles and Responsibilities of Lawyers in Mediation’ (2007) 26The Arbitrator & Mediator39.
18.
CreightonBreenStewartAndrew, Labour Law (Federation Press, 5th ed, 2010) 33.
19.
Ibid130.
20.
FW Act s 592.
21.
FW Act s 596.
22.
Sternlight, above n 4, 409.
23.
Ibid409–10.
24.
For example, s 53B of the FC Act.
25.
LimburyAlan, ‘Should Mediation be an Evidentiary “Black Hole?”’ (2012) 35(3) UNSW Law Journal915.
26.
Law Council of Australia, ‘Guidelines for Lawyers in Mediations’ (Research Discussion Paper, 2011) 6–7.
27.
Menkel-Meadow cited in Tyler, above n 6, 420, estimates that over90 percent of civil cases are settled in this way.
28.
RundleOlivia, ‘Lawyers’ Perspectives on “What is Court-connected Mediation for?”' (2013) 20(1) International Journal of the Legal Profession36.
29.
BallardAllisonEastealPatricia, ‘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>.
30.
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); AstorHilaryChinkinChristine, Dispute Resolution in Australia (LexisNexis, 2nd ed, 2002); Attorney-General's Department ‘Guidance Note No 12’ (Canberra, undated).
31.
Callaghan, above n 17, 39.
32.
DolderCheryl, ‘The Contribution of Mediation to Workplace Justice’ (2004) 33Industrial Law Journal321.
33.
RundleOlivia, ‘Lawyers’ Participation in Mediation and Professional Ethical Disposition' (2015) 18(1) Legal Ethics46, 46.
34.
Ibid47.
35.
AstorChinkin, above n 30, 347.
36.
SourdinTania, ‘Good Faith, Bad Faith? Making an Effort in Dispute Resolution’ (2012) 12(1) Victoria University Law and Justice Journal19–29.
37.
EinarsenStaleMikkelsenEva 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.
38.
HaeselerLisa, ‘Themes of Coping in the Spectrum of Family Violence Abuse: A Review of the Literature’ (2013) 10(1) Journal of Evidence-Based Social Work26. 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).
39.
BaylisClaireCarrollRobyn, ‘Power Issues in Mediation’ (2005) 7(8) ADR Bulletin1.
40.
AstorChinkin, above n 30, 345.
41.
Tyler, above n 6, 433.
42.
KyleLouiseJacksonKeith, ‘Working it out: Your guide to dispute resolution’ (Victorian Law Foundation, 2009) 5.
43.
Tyler, above n 6, 431.
44.
McLayLeah, ‘Workplace Bullying: To Mediate or Not?’ (2009) 11(1) ADR Bulletin1.
45.
Ibid2.
46.
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.
47.
Rundle, above n 33, 47.
48.
This reflects findings in SoundinTania, ‘Poor Quality Mediation – A System Failure?’ (2010) 11(8) ADR Bulletin163–9, 167.
49.
Law Council of Australia, above n 26, 6–7.
50.
For example, see Sternlight, above n 4, 390–1.
51.
Ibid404–5.
52.
Sourdin, above n 48, 168.
53.
Rundle, above n 33, 47.
54.
As reported to practitioner author. This reality is reflected in the requirement for ADR practitioners to disclose existing or prior relationships and any party: DuffyJames, ‘Empathy, Neutrality and Emotional Intelligence: A Balancing Act for the Emotional Einstein’ (2010) 10QUTLJ44, 51.
55.
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’.
56.
This reflects the practitioner author's experience of target perceptions of (mediator) bias.
57.
Rundle, above n 33, 51.
58.
DouglasKathyFieldRachael, ‘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).
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).
