Monday, 1 July 2013

[ADR] Four basic types of mediation and a Hybrid model of mediation (Evaluative, Facilitative, Settlement and Therapeutic)

MEDIATION



The four basic types of mediation include:

Settlement or compromise
(see Google)
Therapeutic mediation
(see Google)

Facilitative mediation

The third party, mediator, involved in facilitative mediation  has the primary role in assisting parties with the management of the mediation process. Unlike evaluative or advisory mediation models, the mediator cannot make advices regarding the facts and possible resolution of the disputes. This model, many argue, underpins the core purpose of the mediation- the self-determination of parties in reaching the negotiation. The mediator therefore can only be described as a third party who sets up the avenue and relevant atmosphere for an effective mediation to take place. 


Evaluative mediation

The evaluative mediation involves the process of a third party not only managing the process of the dispute resolution but proactively engaging in the process of resolution in terms of providing advice to the process, and in some cases, to possible and favourable outcome to the disputes.


Criticisms of the facilitative and evaluative mediation

Both models, unfortunately, are not exempt from scholarly and judicial criticisms. In terms of preserving the self-determination aspect of mediation, the facilitative model does its best compared to evaluative mediation which critically undermines this core value. 

On the other hand, the evaluative mediation is mostly criticised for the lack of necessity for the evaluation. As hinted above, this process undermines the cornerstone of the mediation (self-determination) by actively intervening in the process of decision-making. Again, purists argue that it is not the authorised practice of law. This criticism is well-supported by research conducted in many jurisdictions. The Harvard Law Review of 2011 that researched into the effectiveness of the evaluative model concluded that it is possible to mediate cases without using any evaluative techniques. 


The new model: Hybrid mediation



(NEEDS EDITING)

[ADR] BATNA, WATNA, ZOPA in negotiation

Importance of BATNA, WATNA, ZOPA in Negotiation

"BATNA": Best alternative to negotiated agreement
"WATNA": Worst alternative to negotiated agreement
"ZOPA": Zone of potential agreement

It is important that a successful negotiator identifies BATNA, WATNA and ZOPA.

Firstly, BATNA and WATNA have great relevance and is one of the determinate factors of a party's bargaining power. A party with a BATNA or BATNAs are more capable of positional bargaining and make less favourable proposals to parties that have no or unsound BATNA(s). The source of one party's confidence usually comes from having a BATNA because they can at least work away out of the negotiation without having to lose all the opportunity cost.

Secondly, ZOPA is also a factor that needs to be identified by a successful party. By identifying ZOPA, the parties are happy to negotiate the terms that are within that area and hence reduce time and costs related to the dispute resolution.

There are at least two ways to identify ZOPA.
1) a party can assess the outcome values and costs of termination to other party and;
2) manage other party's impressions and perceptions

How United Nations and its Charter operate in the context of the Syrian civil war


Place the UN framework in the context of the current conflict in Syrian and identify some key obstacles to an effective UN intervention. Discuss barriers (external) that impeded effective dispute resolution

JUNG WOO KIM

Introduction

The conflict in Syria (aka Damascus) is among Syrians; those loyal to the Syrian Ba’ath Government and those who seek to overthrow it. Initially it was a protest, but now it has evolved into an armed rebellion, causing more than 80,000 casualties. As recognized by United Nation and many other international humanitarian aid bodies, Syrian people must identify a resolution to the conflict and implement a vision for a new political dispensation.

UN Charter

Under article 1(1), the fundamental purpose of UN’s existence is to prevent and resolve any disputes or problems to maintain world peace.

The most active organs of UN in resolving disputes are the General Assembly and a Secretary Council established under article 7.

Furthermore, it is provided that the General Assembly (all Members of UN, art 9) may discuss matters within the scope of the Charter (art 10). There is no doubt that the Syrian conflict falls within the scope of the Charter.

Under article 18, each member of GA shall have one vote and for deciding on questions, two thirds majority is required.

There are five permanent members of the UN (China, Russia, Ireland, UK, United States) (art 23) who have exclusive duties in relation to matters under Chapters Six and Seven. In order to pass a resolution of a Security Council, there must be a unanimous vote between those five permanent members (art 27).

The Security Council resolution 2042 (2012) was passed under art 27. It included a six-point proposal that was essentially a mechanism to assist parties in de-escalating the conflict. Specifically, it provided that there is to be: 1) commitment and political dialogue; 2) ceasefire; 3) humanitarian assistance to civilians; 4) release of political prisoners; 5) access to journalists, visas and freedom of movement and 6) freedom of Syrian people to protest without being shot upon.

Both parties committed to abide by the terms and to ensure that this occurred, the UN deployed approximately 300 observers and other 100 personnel under the mission UNSMIS. The United Nations sent in observers to conduct fact-finding and good offices. In short, however, those processes ultimately failed after a few weeks.

Those processes are not one of the listed processes under article 33(1) but it quietly falls within the phrase “other peaceful means.” The process of good offices was originally found in the Manila Declaration.

Good Offices

The crux of the Annan’s peace plan (six-point plan) was essentially the good offices. Good offices can be described as the use of a third party to encourage the contending parties to come to a settlement. Unlike arbitration and adjudication, the process aims at persuading the parties to a dispute to reach satisfactory terms for its termination by themselves. They are also referred to as an adjunct to negotiation as they may simply encourage parties to resume negotiations or provide another channel of communication.

The primary purpose of good offices in midst of Syrian conflict resolution was, paraphrasing UN Report (6 July 2012), to seize opportunities to foster dialogue, to arrange local-level agreements to calm tensions and promote ceasefires between the sides and to deepen engagement where possible, as steps towards confidence-building and stability where signals from the sides encourage such measures.
                                                                                                                                         
Limitations of good offices

The effectiveness of good offices is usually limited by its lack of enforcement powers to ensure parties come into negotiation and the fact that it cannot ensure co-operative atmosphere.

Fact finding

In its application involving missions to crisis zones, fact-finding involves any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation that the competent UN organs need in order to exercise their functions. The purpose of UN fact-finding missions is to discover facts. But further to that primary purpose, the mission aims to prevent conflicts and enhance UN’s ability to monitor conflicts more effectively.

There are no procedural rules but fact-finding should be comprehensive, objective and impartial.

Limitations of dispute resolution processes as a whole

There were at least 4 barriers of implementing UN’s proposed dispute resolution mechanisms to resolve the Syrian conflict. Namely, the barriers were lack of trust, bad faith, responsibility of other countries, armed conflict. In summary, permissive environment was absent for resolution to take place.

A future step to resolving the Syrian dispute

Since the processes under article 33(1) has not worked, the Security Council then can have recourse to articles 41 and 42. Article 41 involves using non-military force or namely sanctions, which are occasionally proven to be ineffective. Article 42, if article 41 has not worked, operates as the last resort to dispute resolution. However in 18th July 2012, it was the third time where China and Russia vetoed against the Western proposed UNSC resolution that would threaten sanctions against Assad. 

[Dispute Resolution] Negotiation; Principled and Competitive types of negotiation


Successful negotiation


Definition

Gifford (1989) defines negotiation as a process in which the two parties attempt to reach a joint decision on matters of common concern in situations where  they are in actual or potential disagreement or conflict
.
Types of negotiation: Principled v. Competitive

There are two main types of negotiation: 1) competitive, positional negotiation and 2) integrative, principled negotiation. The first negotiation involves two or more hard negotiators who are psychologically against each other’s wills. They are less inclined to make concessions and provide substantially limited information and facts. Secondly, the principled negotiations involves two parties who are both willing to make concessions and mutually understand each other’s interests and differences in order to come to the best resolution. Whereas the first type of negotiators are believers of zero sum game, this principled type of negotiators believe in win-win solution.

Criticisms of the two types of negotiation

There is no best type of negotiation because it fundamentally depends on the nature of the dispute that arose between the parties. The competitive model is criticised because of its inability to effectively conclude an agreement since parties are more likely to offer high-standard terms rather than acceptable, reasonable terms. The ongoing dispute between hard negotiators may deteriorate the relationship and the relationship will be built on mistrust and ongoing hostility. Furthermore, the adverse consequences of hard negotiations are that there could be potential impasses in the process which produce cost-ineffective and time-consuming dispute resolution.

The principled and integrative approach is also not free from scholarly and judicial criticisms. The whole notion of principled approach is based on the assumption that there is a win-win solution. Furthermore, it ignores the reality of power imbalances and also the principle of positional bargaining.

Successful negotiation: negotiating in good faith?

A pre-condition for a successful negotiation is the parties’ willingness to negotiate in good faith. Hacock SDP in Re Australian Rail explained duty to negotiate in terms of the parties’ preparedness in considering seriously the offers and options made by the other party and to take into account of arguments. It appears that following this requirement, a negotiation involving competitive bargaining powers are exempt from being a successful negotiation. However, it must be acknowledged that a successful negotiation depends not on the two parties’ perspective but in practice, the eye of the winning team. Despite this limitation, the courts have occasionally recognised such duty and the most relevant case is United Rail Group Services.

Barriers to successful negotiation: Bad faith, competitive negotiation

The biggest barrier obviously involves a party’s unwillingness to negotiate in good faith. The court in Western Australia Taylor  identified some indicia of bad faith including stalling negotiations, communication failures, unexplained delays, failure to respond, adopting non-negotiable negotiations, refusal to sign an agreement etc. Again, it is a failure to do what a reasonable would do in the position.

[ADR] Facilitative, Advisory and Determinative Alternative Dispute Resolution Processes



NADRAC (National Dispute Resolution Advisory Council) classifies ADR (alternative dispute resolution) into three types depending on the role of the third party. They are the facilitative, the advisory and determinative processes. The facilitative approach involves a third neutral party assisting the parties as to the management of the procedure. Unlike the other two types, it does not have an advisory or determinative role. Processes such as mediation, conciliation and facilitation come under this classification. Secondly, the advisory type involves a third neutral party assisting the parties with the process of the dispute resolution but also advises the parties on the facts of the dispute and may make advice, in some cases, in regards to possible, probable and desirable outcomes to the dispute. This is not, however, a binding determination but merely advisory. Here, case appraisal, investigation, expert appraisal, case presentation and dispute counseling comes under. Thirdly, the determinative process involves a third neutral party that has a more proactive role compared to the former two types. The third neutral is involved with evaluating the facts and determining the outcomes of the dispute. This process may include arbitration, expert determination, fact finding and adjudication.

There are notable advantages of the first type of ADR processes- facilitative. There are also arguments against the use of facilitative ADR but it depends on the nature of the parties’ dispute. Firstly, many scholars argue that facilitative processes allow for greater flexibility and greater possibility for creative solutions than does a purely evaluative process. This is because the facilitative process, by virtue of not having an evaluative and advisory role, is interest-based approach compared to rights-based approach. As a consequence, the process can take into account of the whole dispute including the emotional responses and wider implications of the dispute rather than merely focusing on the legal issues. However, proponents of the evaluative approach may argue that this does not serve the principle of justice and fairness as it does not purely address the legal issues. But again, the main objective of most dispute resolutions is to satisfy the clients and this, the parties’ satisfaction, is essential the main measure of the effectiveness of a dispute resolution. 

Another advantage of the facilitative ADR is that the evaluative, rights-based processes can lead to greater positional bargaining. This is because once evaluation is given, a party whom is unfavored may perceive a partial bias in the evaluation. Moreover, this evaluative role undermines the cornerstone of the ADR processes- the protection of self-determination. An evaluative role may undermine this by actively engaging in determination of the outcome.


[Criminal; Property] Offences Relating to Property in Queensland


OFFENCES RELATING TO PROPERTY


Purpose

            Protect a person’s ownership, possession, and similar rights and to prevent and punish infringements of these rights

Offences relating to property in Qld

Offences
Provisions
Stealing

390-417, 444A-457
Burglary

418-427
Fraud and deception


427A-442
Identify fraud

408D
Computer hacking

408E
Secret commissions

458-479
Property damage and arson

458-479
Forgery and personation
484-571





Offence involving Stealing


HISTORICAL DEVELOPMENT

Definitions


Old common law
Queensland (1899)
UK, Vic, SA (1968)-
Offence
Larceny
Stealing
Theft



Elements
·       Steals
·       Without consent
·       Fraudulently and without a claim of right made in good faith
·       Takes away anything capable of being stolen
·       With intent
·       Permanently deprive the owner thereof. [1]
·       Fraudulently takes anything capabe of being stolen
·       OR
·       Fraudulently converts to the person’s own use[2]

·       steals
·       dishonestly appropriates property
·       belonging to antoher
·       with intention of permanently depriving the other of the property[3]





STEALING

Stealing

Things, capable of being stolen, s390
Belonging to another
Taking or converting, s391(1)
Lack of consent not required


Fraudulently: special intention, s391(2)(a)-(f)
No claim of right, s22(2)[5]


Aggravated penalties, s398 ‘special cases’


1.1       Taking or converting, s391(1)

First alternative: Taking
Requires physical movement or dealing with property by physical act (so called asportation), s391(6)

Second alternative; Converting
Dealing with the property in a way inconsistent with the right of the owner: Ilich  R
e.g keeping property, selling it, changing its appearance, also stealing by bailee etc
NOT: mere use of property, offer/preparation for sale, mere failure to return (R v Angus)

1.2       Things capable of being stolen, s390

S390: Anything (a) moveable or (b) capable of being made movable

Property, s1
·       Animate+ inanimate things
·       Money
·       Electricity, energy, gas, water
·       Plants, animals (except wild animals, cf ss1(e), s392(1));
·       Any property real or personal, legal, or equitable including things in action and other intangible property (s1)
·       CANNOT STEAL: things do not have an owner (e.g. wild animals)

1.3       Property belonging to another (“of any person”)

Property that does not belong to anyone (or has been abandoned) and property which accused owns and in which nobody else has a proprietary interest cannot be stolen

·       Property may be stolen from the owner, including part-owner, s391(2)(a)
·       Property may be stolen from any person who has a special property in the thing, s391(2)(b), (2AA)
·       Property may be stolen from any person have possession or control, s391(7)
·       Having a relevant interest in the thing, s396
·       Property may be stolen by the owner, if others have proprietary rights in or others possess the thing, cff s391(7)

Property obtained as a result of mistake

Problem: lack of consent is not an element of stealing in Qld.
Hence: property passes if transferred with consent of the owners, so property may no longer belong to another person

Is it stealing if property passes because of a mistake by the owner?

1) It is not stealing because property has passed and consent (and validity of consent) is irrelevant: R v Potisk
2) But: ownership does not pass (and stealing may arise) if the mistake was a fundamental one: Ilich v R (1987). It is fundamental if it relates
·       To the identity of the person to whom it was transferred
·       To the identity of the thing that is to be delivery
·       To the quantity to be delivered

2.1       Fraudulently, s391(1)

a person is deemed to act fraudulently, s391(2)(a)-(f) [special intentions; exhaustive list]:

(a) an intent to permanently deprive the owner of the thing of it;
(b) an intent to permanently deprive any person who has any special property in the thing of such property;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
(e) an intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion;
(f) in the case of money—an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.[6]

2.2       No claim of right, s22(2)

No liability for stealing if at the time of taking or converting, the accused honestly believed he/she was exercising a legal claim of right, s22(2)
= exception to s22(1) that ignorance of law is no excuse

·       Belief has to be honest, not also reasonable
·       Belief is not held if it can be established that the accused acted fraudulently;
·       Belief has to relate to a legal claim of right, not a moral claim: Walden v Hensler (1987)




ROBBERY


Section 409 Definition of robbery

Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery.



Elements


Physical elements
Stealing
Taking or converting
Things capable of being stolen
Belonging to another
Using or Threatening violence, s409

Mental elements
Fraudulently; special intention, s391(1),(2)
Use of violence/threats in order to obtain the thing stolen or to prevent/overcome resistance, s409
No claim of right, s22(2)
Aggravations, s411(2)
·       Armed robbery: accused is or pretends to be armed with an offensive weapon or instrument
·       Accused is in the company of 1 or more others
·       Accused casuses wounds or uses other personal violence




Attempted robbery, s412
Assault with intent to steal, s413[7]







BURGLARY

Section 419 Burglary

(1) Any person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime.
Maximum penalty—14 years imprisonment.
(2) If the offender enters the dwelling by means of any break, he or she is liable to imprisonment for life.
(3) If—
(a) the offence is committed in the night; or
(b) the offender—
(i) uses or threatens to use actual violence; or
(ii) is or pretends to be armed with a dangerous or
offensive weapon, instrument or noxious substance; or
(iii) isincompanywith1ormorepersons;or
(iv) damages, or threatens or attempts to damage, any property;
the offender is liable to imprisonment for life

(4) Any person who enters or is in the dwelling of another and commits an indictable offence in the dwelling commits a crime.

Maximum penalty—imprisonment for life.



Elements


Physical elements
Entering or being (in a dwelling), ss419(1), 418(2)
Dwelling of another, ss419(1), 1
Mental elements
Intent to commit an indictable offence, s419(1)

Aggravations s419(2),(3),(4)
·       Entering by means of any break
·       Offence committed at night
·       Use or threat of violence
·       Armed burglary
·       Burglary in company
·       Damage of or threat to damage property
·       Actual commission of indictable offence

OFFENCES SIMILAR TO BURGLARY

Entering or being in premises (other than a dwelling) with intent to comit an indictable offence, s 421(1)

Aggravations
            Entering by means of any break
            Actual commission of indictable offence

Possession of things in connection with unlawful entry, s425

Unlawful entry of a vehicle with intent to commit an offence, s427

RECEIVING


Section 433 Receiving tainted property

(1) A person who receives tainted property, and has reason to believe it is tainted property, commits a crime.
Maximum penalty—
(a) if the property was obtained by way of an act constituting a crime—14 years imprisonment; or
(b) if the property is a firearm or ammunition—14 years imprisonment; or
(c) if the offender received the property while acting as a pawnbroker or dealer in second hand goods, under a licence or otherwise—14 years imprisonment; or
(d) otherwise—7 years imprisonment.
(2) For the purpose of proving the receiving of anything it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his or her possession, or has aided in concealing it or disposing of it.




Elements


Physical elements
Receiving
- proof of possession or aiding in concealing suffices

Tainted property
- anything obtained by way of an act constituting an indictable offence

Mental elements
Reason to believe it is tainted property, s 433(1).
Unclear whether the element is assess subjective or objectively
Penalty
Depends on type of property/type of receiving, s 433 (1)(a)-(c)



Offence involving Dishonesty        

Stealing v Dishonesty

Offences of dishonesty overlap with stealing; usually the offences are used when stealing offences cannot be established

Offences under s 408C Criminal Code (Qld)

(1) A person who dishonestly
(a) applies to his or her own use or to the use of any person (misappropriation)
(i) property belonging to another; or
(ii) property belonging to the person, or which is in the person's possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or
(b) obtains property from any person; or (dishonestly obtaining property from another)
(c) induces any person to deliver property to any person; or
(d) gains a benefit or advantage, pecuniary or otherwise, for any person; or
(e) causes a detriment, pecuniary or otherwise, to any person; or
(f) induces any person to do any act which the person is lawfully entitled to abstain from doing; or
(g) induces any person to abstain from doing any act which that person is lawfully entitled to do; or
(h) makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment;
commits the crime of fraud.

OBTAINING BY DECEPTION (1(B))


Elements


Physical elements
Includes: to get, gain, receive, or acquire’
Obtaining possession suffices
Obtaining by owner’s mistake is possible

Property, s1
Also includes credit, service, any benefit or advantage…

Mental elements
Dishonesty under common law[8]
S408C(3)(b): conduct may be dishonest even though…

Dishonesty
R v Feely [1973]
Dishonesty is decided by applying the current standards of ordinary decent people
- Dishonesty is decided only objectively                     
R v Ghosh [1982][9]
“a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest... If it was dishonest... then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.’
-> dishonesty is decided objectively and subjectively
Peters v R (1998) HCA
Jury should apply the current standards of ordinary decent people, no instructions, no subjective element needed (in relation to a charge of defrauding the Cth)
R v White
(follows R v Ghosh; but judges were on drugs)



MISAPPROPRATION



Elements


Physical elements
Applying to his or her own use or the use of antoher
-Actual use

Property
Mental elements
Dishonesty
Inducing a person to deliver property
Gaining a financial advantage by deception



Property damage and destruction



WILFUL DAMANGE, s469 Criminal Code


Section 469 Wilful Damage

(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and the person is liable, if no other punishment is provided, to imprisonment for 5 years.
(2) For this section, other than punishment in special cases, clause 11, the destruction or damage of property that is a thing mentioned in section 566(11) is presumed to be done without the owner’s consent until the contrary is proved.
(3) For this section, punishment in special cases, clause 11, the destruction or damage of property is, until the contrary is proved, presumed to be done—
(a)  without the owner’s consent; and
(b)  if the property is fixed in a cemetery or at a crematorium—
(i)  without the lawful consent of the entity (if any) responsible for managing and administering the cemetery or crematorium; and
(ii)  not in the reasonable belief that lawful consent mentioned in subparagraph (i) has been given.


Elements


Physical elements
Property of another

Damage or destruction
Result: accused conduct rendered property ‘imperfect or inoperative’
Mental elements
 Wilful
-> intentional or at least reckless: R v Lockwood; ex parte AG [1981]; R v Hayes [2008]



Defences
Special defences, s458
Consent of owner, authorization, and other special justifications and excuses

General defences
-self defence etc


Penalty
5 years
Higher penalty for special cases listed after s469




[1] Ilich v R (1987); s1(1) Larceny Act 1916 (UK)
[2] s391(1) Criminal Code (Qld)
[3] Vic, s71
[4] comes from Common Law
[5] comes from Common Law
[6] like fuel (mixed up with what is inside the car already)
[7] before liability for attempt
[8] there is no definition under the Code
[9] Qld: R v Laurie; R v Allard; R v Sitek; R v Harvey; R v White