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ADR Workbook Exercise 1 1.

The legal standard of a reasonable person is used to put in context a persons behaviour against that of what would be societies expectations of how a person is to behave. It assumes a person who has the capacity for self control and is not exceptionally excitable, pugnacious or irrational 1. It assumes an acceptable level of honesty, care and judgement in decision making. It is hopeful in assuming a person has an ingrained sense of empathy towards others and especially to those they share a kinship with. It is not idealistic in assuming a standard that society would like a perfect person to behave but realistic given an average persons fear and weaknesses; A reasonable person would not be expected to put their life in danger except in the most extreme circumstances. They would be expected however to take caution to prevent harm to another person either through their action or their inaction. This caution would also extend to not acting negligently in a manner that may cause damage to property2. A reasonable person is said to be able to infer from their innate logic and deductions that certain actions they take may lead to injury to a person or property. A reasonable person does not have the characteristics of an ordinary person as it can be argued the ordinary person is in fact not always reasonable and is often irrational. Therefore the the predominant characteristics of a reasonable person with ordinary fortitude and strength of mind 3 is one who has a practical understanding of causality and makes decisions based on their likely outcomes given an acceptable level of forseeability. 2. Mona in this case seems to be going to lengths beyond that of which is expected of a reasonable person. Her compromising attitude towards her brothers shows a high degree of patience as she continually makes an attempt to involve them in their mothers care. When faced with such a scenario of being the only care giver a reasonable person would attempt to organise with their siblings any chance for alternative arrangements where they could share the responsibility or cost for the care. This is exactly what Mona is attempting to do. It may be possible that a reasonable person in this case would realise that the two brothers are not interested in caring for their mother and that Mona is only wasting her time. It would then be best for her to concentrate her efforts on finding an alternative care arrangement that doesn't involve her neglectful brothers.

1 R v Camplin AC 705 (1978) 2 Vaughan v. Menlove, 132 ER 490 (1837) 3 The Queen v Lavender [2005] HCA 37

Amir and Atef however could be found not to be conforming to the model of a reasonable person. Lacking the characteristic empathy of a reasonable person they are being uncooperative and combative in meetings arranged by Mona. A reasonable person would infer that it is in the best interests of their mothers care that the siblings come to a fair agreement where the responsibility is shared equally as possible between them. If there was any previous hostility between the siblings a reasonable person would attempt to put aside those differences in order to resolve a fair outcome. It would even be possible that the brothers may come to the conclusion that the best way for them to avoid being hassled by their sister would be to offer to contribute an amount of money and have the sister organise the care as it is obvious she is the most involved. 3. The combativeness in disputes in family matters often does not arise from the dispute itself but past issues which remain unresolved. The meeting or dispute then simply becomes an arena where past grievances can be brought up and argued over. In this scenario either of the three siblings may have past issues with each other or with their mother which is preventing them from evening beginning to talk about the current dispute. Mona may have a long history of autocratic control and her brothers current behaviour may be their only way of avoiding continued abuse. The two brothers may feel that their duty to their mother has long been paid through past contributions which is why they bring this up during meetings. However the fact that the brothers attempt to avoid the meetings and lead the discussion to trivial matters could either indicate their lack of interest in the care of their mother or simply conflict avoidance with their sister. This would add weight to the notion that the issue relates to the sibling relationship being the major factor in their behaviour. They may be acting in this unreasonable manner causing the dispute to go unresolved as a means of revenge using the care of their mother as a platform to purposefully frustrate Mona. This may be a case of sibling rivalry where in the past one sibling had dominant control or attention. The two brothers may have a history of always siding together in an argument with the sister regardless of the dispute and this issue could just be a continuation of that behaviour frustrating any opportunity for a logical fair outcome4. If this was the case resolution of the dispute would be difficult with all three siblings present.

4 Sam Vuchinich,Conflict - Family Relationships <http://family.jrank.org/pages/315/Conflict.html> Accessed 13th August 2012