1,720,963 research outputs found
The impact of professional culture on dispute resolution in the building industries of Australia and Sri-Lanka
Get PDFThe construction industry poses a number of challenges to those working in it. One important challenge is that the industry is dependent upon human interactions in the management of building projects. In this environment it is important for those who manage the projects to deal with intricate relationships and to consider the emotions, interactions and various types of reasoning that lie behind the actions and decisions taken by the participants in the construction process.
The issue for researchers is to gain a better understanding of the variables that affect the actions of the participants in this process. Such research demands sensitivity to the values, attitudes and behavior developed by the different occupational groupings. These factors according to Edgar Schein define the culture of a professional group. This research was conceived on the belief that the professionals in the construction industry brought to bear their own professional culture on the industry. It was necessary to have a better understanding of this culture in order to be able to resolve disputes that occur in the construction process.
That is the impact of culturally deternlined values, attitudes and behavior of these professional groups. Therefore, this research is aimed at investigating the professional cultures of the participants who come together in a construction project. The question posed was whether they shared a culture or had differences, and if differences existed whetherthese differences had an effect on the reactions of each of the groups to disputes and their resolution.
A survey was carried out among professional groups in Australia and Sri-Lanka and the survey data from both countries were analyzed using statistical tests. The results show that professional groups share similarities in professional culture as well as differences. It also showed that these cultural differences created an adversarial atmosphere among construction project participants. It was also found that introducing a party outside of the usual professional groups would be beneficial in the resolution process. Respondents were of the opinion that the third party outside of the construction team could be a lawyer.
This type of research is still new within the field of construction. The contributions of this work are to link professional culture and conflict and give some indication how such conflict could be addressed. In this context by identifying the values attitudes and behavior of professional groups the subject of conflict and disputes could be beneficially addressed through professional education
Do Judges Need to Be Human? The Implications of Technology for Responsive Judging
No full textJudicial responsiveness requires judges to act from the perspective of conscious legal rationality and also with intuition, empathy and compassion. To what extent will the judicial role change in terms of responsiveness as many aspects of human activity, including aspects of the work of lawyers and judges, are not only augmented, but even taken over entirely by replacement technologies? Such technologies are already reshaping the way the legal profession operates, with implications for judges by virtue of how cases are prepared and presented. In relation to courts, the judicial role is also being augmented, and modified, by technological advances, including the growth of online adjudication. There has even been speculation that the role of the judge not only could be taken online, but as computing techniques become more sophisticated, be fully automated. The role of the human judge though is not merely that of a data processor. To reduce judging to such a definition would be to reject not only the humanity of the judge, but also that of all those who come before them. A better understanding of the essential humanity of the judge will help ensure that technology plays a principled and appropriate role in advancing a responsive justice system. Insights from psychoanalytical thought will aid in that understanding, and in developing the code that drives future applications of artificial intelligence in judicial processes
"Never ending, still beginning": A defense of electronic law journals from the perspective of the E Law experience
No full textThis article considers the future of scholarly electronic journals (or ejournals) in the light of their short history with a particular focus on the discipline of law*. The author argues that self-publication by scholars on their own Web sites is not an adequate substitute for the peer reviewing and active dissemination which can be provided by an ejournal**. E Law - Murdoch University Electronic Journal of Law is used as an example of what such journals can contribute
Judicial Dispute Resolution in Canada: Towards Accessible Dispute Resolution
No full textThis article argues that access to judges is an essential element of access to justice. Traditional civil litigation procedure aimed at preparation for trial that is complex, time-consuming and costly obstructs such access, especially for litigants without lawyers. To remedy this, the author proposes a summary judicial dispute resolution procedure comprising two stages: early judicial intervention followed by judicial dispute resolution that is determinative if necessary. At both points litigants would be given the opportunity to settle their dispute consensually, thus combining principles of self-determination with final disposition according to law. The proposal draws on and extends contemporary innovations in Canadian courts concerning summary proceedings and binding judicial dispute resolution. The new procedure should improve access to judges and thus access to justice.Dans cet article, l’auteur soutient que l’accès aux juges constitue un élément essentiel de l’accès à la justice. La procédure traditionnelle en matière civile, qui est axée sur la préparation en vue d’un procès complexe, long et coûteux, entrave cet accès, surtout pour les parties qui n’ont pas d’avocat. Afin de corriger cette situation, l’auteur propose une procédure sommaire de règlement des différends comportant deux étapes : une intervention judiciaire précoce, suivie au besoin d’un processus judiciaire qui permettra de sceller définitivement l’issue du litige. À chaque étape, les parties auraient la possibilité de régler leur différend de manière consensuelle, ce qui favoriserait l’application tant des principes de l’autodétermination que ceux du règlement final des litiges conformément à la loi. Inspirée au départ des récentes innovations introduites devant les tribunaux canadiens en matière de procédure sommaire et de règlement judiciaire contraignant des différends, cette proposition va plus loin et devrait permettre d’améliorer l’accès aux juges et, par le fait même, l’accès à la justice
Standing on the Shoulders of Giants: Artistry, Expertise, and Professionalism in Mediation and the Role of Higher Education
Get PDFThis paper examines what it takes to be a good mediator. It suggests that mediators should strive for artistry in their work which is the result of “reflection in action”. The paper then surveys the fields of knowledge drawn upon by some of the “giants” in the mediation field. These examples help us to recognize the breadth of knowledge necessary for artistry in practice which should become the new professional standard. Finally, it proposes that this knowledge be academically taught as part of an undergraduate degree
Avatars go to Law School: Digital Standardized (and not so Standard) Clients for Law School Teaching
Get PDFStandardized clients have been a feature of medical schools for years. Digital technologies now offer the opportunity to create them in interactive form as avatars. In addition, advances in semantic computing now allow extensive and complex dialogues with computerized agents using “chatbots”.
Teaching interviewing and counseling as well as other client related skills requires repeatable, realistic practice that is not optimal when relying on students to simulate being clients for each other. This paper proposes the development of digital client avatars for these teaching purposes. It examines some of the technical challenges and pedagogic opportunities
Epistemology and Ideology: The Case of Mediation
No full textMediation, once an "alternative" process, has gone mainstream. Most courts in North America now include it as part of normal litigation procedure. In the United States there is even fear that mediation will lead to the extinction of courtroom trials in many areas. A decade ago scholars and researchers wondered what the institutionalization of mediation would do it, and what it would do to the legal system. Some answers are now becoming clear and they are raising concerns for both mediators and lawyers. My research begins with these circumstances but extends to a consideration of wider processes of interaction between knowledge and ideas in society. How has knowledge and practice of conflict resolution morphed into mediation ideology? Is this just one example of a new relation of production that global society now supports: the transformation of knowledge into ideology that has material effects
Knowledge Networks or Discourse Communities? Response to Hibbitts' Commentary on Electronic Journals
No full textProfessor Bernard Hibbitts commented on my article in support of scholarly electronic journals in his piece E-Journals, Archives and Knowledge Networks: A Commentary on Archie Zariski's Defense of Electronic Law Journals by suggesting there were now other more efficient and effective models of scholarly communication using computer networks. In this response, I question whether the networked alternatives Hibbitts recommends will enable scholarly discourse to continue in the way necessary for the maintenance of disciplinary knowledge or whether they merely provide for the bare exchange of data and information
The New Old Lawyer: How Lawyers have Adapted to Mediation to Preserve their Power, Income, and Identity
Get PDFThis paper outlines the evolution of mediation in some common law jurisdictions from an idea most lawyers dismissed to a practice most now use. It highlights the attitudes and actions of lawyers as they have adjusted their practices to include mediation, and adapted mediation to suit their needs. In so doing perhaps it provides a glimpse into the future in those jurisdictions where mediation is still struggling for acceptance, and a caution about what price might have to be paid for such success
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