The Inappropriate Imposition of Court-Ordered Mediation in Will Contests
Following the successful implementation of court-ordered mediation programs in divorce and family law cases, similar programs are being adopted to mandate the use of mediation in other areas of litigation. Complex emotional and personal issues can easily transform inheritance into a destructive process, and an increasing number of courts are ordering probate disputes and will contests to mediation. The freedom of the individual to designate his heirs is a foundational norm that permeates doctrine in the law of wills, and as a result, the idea of testator intent has reached near-mythical stature. Conversely, mediation shapes settlement without rigid deference to legal rules and often marginalizes the intent of the testator as an impediment to reaching agreement. Because the approach taken in mediation directly conflicts with the legal rules applied by the courts adjudicating those same cases, a legitimate question is raised as to whether or not instituting court-ordered mediation programs that mandate mediation in will contest cases is appropriate. The contention of this Article is not that mediation is inappropriately used by the parties to a will contest case, but instead that court-ordered mediation is inappropriate. Mandatory mediation imposes an obstruction on the right of access to the courts that is inappropriately imposed when the process contravenes the substantive law of the case. This Article proposes an easily-implemented legislative solution that resolves the conflict between law and process.
Freedom of Testation / Freedom of Contract
This Article argues that lawmakers ought to recategorize inheritance law and contracts law as cognate bodies of doctrine within a larger genus of transfers law. The Article proceeds to examine comparatively the justifications for freedom of contracts and freedom of testation, concluding that their underlying rationales are largely, although not entirely, symmetrical. This conclusion suggests the usefulness of comparative analysis of substantive limitations imposed on each of the two freedoms, which may prove inconsistent with each other or, what is worse, incompatible to the extent that contractual forms of transfer can functionally substitute for testamentary forms of transfer. In fact, such inconsistencies and incompatibilities do exist within several of the doctrines currently limiting a testator's freedom to craft an estate plan. These findings suggest the need to reconcile substantive doctrines within the fields of wills and contracts, a process that will require lawmakers to redraw the boundaries of freedom of testation.
Project management education: The human skills imperative
Abstract This paper is intended to provide an insight into the importance of human skills in project management success and the apparent lack of emphasis placed on this within the context of university education. The discussion will call upon the viewpoints of many notable authors in respect to the human or ‘soft’ skills that are necessary in the management of projects. Against this background a review will be conducted into how well project management literature and university education equips potential project managers in the area of human skills. As the PMBOK ® Guide is one of the major recommended texts in Australian universities offering project management education, the paper will identify that it predominantly emphasises the required ‘hard (technical) skills’ at the expense of the ‘soft (human) skills’. Subsequent discussion will highlight the need for a balance between hard and soft skills within project management education in universities. It will conclude that educators within this discipline should recognise the importance of incorporating greater human skills aspects into their educational programs.