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Cite as: (2008) 82(4) LIJ, p. 69

Mediation law and practice, international criminal proceedings, forced departures from Australia and professional conduct are covered in this month’s reviews.

Mediation Law and Practice

David Spencer and Michael Brogan, Mediation Law and Practice, 2007, Cambridge University Press, pb $99.95

Mediation is, of necessity, a lonely business for mediators. They must maintain confidentiality and neutrality while fostering empowerment and communication and the generation of unique solutions – all with the voluntary participation of the parties.

Lawyers who act as mediators may not often get an opportunity to reflect on what they do and why they do it. This book provides such an opportunity.

Mediation Law and Practice is not a “How to be a Mediator” manual. In essence, it identifies the five core mediation components of confidentiality, voluntariness, empowerment, neutrality and unique solutions, It explores these as distinct philosophies through the words of a cross-section of mediators, lawyers and academics set in a supporting commentary from the authors.

The first half of the book deals with the theory and philosophy of mediation with some reference to practice.

The second half turns to the position of mediation in the state and federal jurisdictions, both courts and legislation. It explores the potential liability of those engaged in mediation; confidentiality and its connection with privilege; and the drawing of settlement agreements and dispute resolution clauses. The authors extract passages from relevant cases to illustrate their propositions and commentary, which is pithy and direct. Finally, the authors look at the future of mediation (including online mediation), and whether mediation and other non-adjudicatory processes might actually constitute a threat to, and even replace, adjudicatory dispute resolution such as trials.

The “casebook” style used by the authors in incorporating large extracts from the work of others, and binding those extracts with their own commentary, needed a small font to fit everything in. It makes for difficult reading.

However, this is balanced by the overwhelming advantage of having a smorgasbord of views from a whole range of experts on topics related to mediation all in the one place. As such, the book is a challenging and rewarding read, and a valuable reference.

Accredited Mediation Specialist
Mentor, Leo Cussen Institute
Practical Training Course

The Milosevic Trial

Gideon Boas, The Milosevic Trial: Lessons for the Conduct of Complex International Criminal Proceedings, 2007, Cambridge University Press, pb $79.95

What is the capacity of the international community to bring to justice heads of state for war crimes committed under their control and direction in the aftermath of the Milosevic trial, arguably the most public and expensive failure of international criminal law in its relatively brief history? Just as the Pinochet case made human rights history despite the failure to extradite Pinochet, Boas argues that the Milosevic trial provided the world with invaluable guidance in how to try a tyrant, despite the death of the accused and lack of an outcome.

The Milosevic Trial does not purport to deal with the substantive criminal case against Milosevic, but serves as a technical procedural manual on how to conduct complex international criminal proceedings against often unwilling and manipulative senior officials. As senior legal adviser to the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) during the Milosevic trial, Boas is perfectly placed to offer an insider’s perspective.

There is criticism of both the prosecution and Tribunal, in particularly the Appeals Chamber of ICTY, for decisions contributing to an overzealous prosecution and the construction of an unmanageable trial case. Along the way the author provides well-sourced and reasoned analysis of some of the key dilemmas in marrying fairness and efficacy in trials involving international crimes committed on a massive scale.

In arguing for international criminal courts to adopt a more interventionist and pragmatic approach to complex trials, Boas makes constructive proposals, including the need for close judicial pre-trial scrutiny of indictments and greater use of amicus curiae models. This expert commentary, albeit case specific, provides not only useful guidance for the conduct of future international criminal trials, but also valuable insight on the balance necessary in ensuring fair, focused and sustainable trials.

International Legal Aid Adviser
United Nations

Glenn Nicholls, Deported – A History of Forced Departures from Australia, 2007, University of New South Wales Press, pb $34.95

On 16 November 2007, US Immigration released guidelines governing immigrants with child or family care responsibilities. Illegal Honduras immigrant Saida Umanzor’s arrest and separation from her breastfeeding nine-month-old forced this outcome. Born in the US, under the 14th Amendment the child has rights as an American citizen.

Regrettably, and despite a long-held principle that a person born in Britain was a British national, a High Court majority has said being Australian-born does not of itself bring Australian nationality or citizenship. Australian-born children of “aliens” have no birthright.

Glenn Nicholls’ important book, Deported – A History of Forced Departures from Australia, traces the historical and legal steps by which Australia has come to this. Deported canvasses immigration and aliens laws and policies from Federation. It reveals how, despite the White Australia policy and mass deportations at various intervals, Australia’s founders were mindful of transportation’s inhumane aspects (so long as one’s skin was “white”) and did not want to emulate policies which had led to colonisation or invasion of Australia.

This did not, however, save those coming from Asia. Many had been living in Australia for decades, with familial ties going back centuries through intermarriage with Indigenous Australians. Rounding them up, and sending them away, was catered for under the new Constitution and by the Immigration Restriction Act 1902 (Cth).

The brief conclusion observes, ironically, that the present Department of Immigration asserts it “has achieved ‘world’s best practice’ in identifying people without a valid visa” to be deported forcibly.

Deported covers the issues well, with reference to leading cases. It illustrates how policies have been less or more repressive at different intervals, how courts have supported or stood against repression, and how the major political parties are equally implicated in human rights denial.

It is mandatory reading for all Australians.

Barrister and Human Rights Lawyer
Owen Dixon Chambers

Lawyers in Australia

Ainslie Lamb and John Littrich, Lawyers in Australia, 2007, Federation Press. pb $60

Our society, economy and technology have changed dramatically since the 1980s and consequently so has the nature of legal work and the legal profession. Lamb and Littrich, who teach at the Legal Practice Unit at the University of Wollongong, have written this book for students undertaking the compulsory professional conduct subject. They examine recent changes in the profession and place them in their sociological context.

This book is, however, of direct relevance to all lawyers because it undertakes a comprehensive audit of legal practitioners’ work, education, culture, the judiciary, the delivery of legal services and all facets of access to justice.

While we need a report card in these areas, the text’s greatest merit is that it considers future directions and what preparation might be needed. In the epilogue, the authors note five key factors which will bring significant change over the next decade: advances in information technology, effects of globalisation, changes in competition and government regulation, changes in demographics and social attitudes and advances in science.

The authors suggest that legal work is becoming more “academic” because of the deprofessionalisation of routine legal work, e.g. family law and conveyancing, the increasingly specialised and creative nature of solicitors’ work (“boutique practices”), the trend towards written submissions in higher courts, and the increasing need for international and comparative perspectives. Future growth areas predicted for legal practice are e-commerce and international commerce, capital financing as overseas investors gain greater access to Australian markets and vice versa, intellectual property, legal consequences and ethical dimensions of advances in biotechnology, elder law and transnational crime and crime prevention.

Is our legal education, our mechanisms for access to justice and our ethics equipped to deal with these changes? We are only just beginning to see ourselves as Australian practitioners, and have not yet looked sufficiently beyond our own shores. Lawyers in Australia offers a blueprint for our law societies, law faculties, professional legal education providers and legal ethicists, as well as challenging us all to revisit our current operations.

Solicitor and Adjunct Lecturer
The College of Law Victoria


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