76052 Dispute Resolution Advocacy
Warning: The information on this page is indicative. The subject outline for a
particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2025 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): 70104 Civil Practice OR 70517 Equity and Trusts
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Description
This subject deals with the jurisprudence of dispute resolution, and the theory, dynamics and essential characteristics of the major dispute resolution processes, so that effective strategies for resolving a wide range of disputes can be formulated. The subject's emphasis is on the role of lawyers in dispute resolution processes; advising clients on, and preparing clients for, suitable dispute resolution processes; the institutionalising of dispute resolution processes; the nature of disputes and the theoretical, ethical and practical issues. Students develop their capacity to think critically, strategically, and creatively about the nature, role, and range of dispute resolution processes. A two-day intensive weekend workshop enables students to practice and develop their negotiation and mediation skills and understandings through simulated role-plays and exercises. This subject develops students’ oral and written communication skills through the use of participatory, student-led seminars and reflective practice. Students develop and refine their skills in researching, identifying, assessing, and critically analysing disputes and resolution processes.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Explain and evaluate the nature and purpose of different dispute resolution processes covered in the course and the range of options in each process. |
|---|---|
| 2. | Critically analyse and distinguish dispute resolution processes and systems that are being incorporated into legal practice and the court systems and differentiate the role of the lawyer in adversarial and non-adversarial processes. |
| 3. | Develop and implement a tool to assist legal professionals to select the appropriate dispute resolution process for a client’ s problem. |
| 4. | Construct clear, succinct, reasoned, integrated and insightful analysis and arguments that are supported by research and scholarship |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including:
a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including the ability to:
a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
b. Apply reasoning and research to generate appropriate responses;
c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1) - Communication
Effective and appropriate communication skills including:
a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
b. An ability to communicate to inform, analyse, report and persuade;
c. An ability to strategically select an appropriate medium and message;
d. An ability to assess how messages are received and alter communication strategies accordingly; and
e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1) - Collaboration
Effective and appropriate collaboration skills in working together to achieve a common goal in a group learning environment or the workplace including:
a. An ability to give and receive feedback;
b. Appropriate professional and interpersonal skills in working collaboratively;
c. A capacity to develop strategies to successfully negotiate group challenges; and
d. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.6.1)
Teaching and learning strategies
Strategy 1: Student Preparation and independent learning
Students prepare for lectures, seminars and workshops and reflect upon what they have learnt afterwards. Class-time provides opportunities for students to practise the skills and theories presented in previous classes and the course material. Course material is available on Canvas and students are expected to familiarise themselves with the content and skills covered in the materials prior to lectures, seminars, and workshops. Other online resources enable students to clarify concepts and terminology.
Strategy 2: Engaging in Lectures and Seminars
Because of the interactive nature of this subject, students benefit most from the real time delivery of content. Lectures and seminars enable students to clarify, discuss and develop subject concepts. Additionally, students practise the skills and theories presented in previous discussions and preparation. Students will meet with practitioners and will have opportunities for dialogue on contemporary professional and advocacy issues based on their online preparation. Immediate feedback is provided by peers and experts throughout lectures and seminars.
Strategy 3: Oral Presentations
Seminars involve students presenting on designated topics. Students receive feedback from peers and teachers not only on their knowledge of a subject area but also their ability to advocate client interests and communicate their thoughts and relevant information in a clear, coherent and confident manner.
Strategy 4: Case scenarios
Case studies are used to help students explore topic related scenarios. Students use these scenarios to learn concepts, interpret information, practise advocacy and develop creative solutions. Critical thinking is developed through analysis, interpretation of and reflection on issues or situations. Students have ongoing opportunities to ask questions about any aspect of the case scenarios and receive ongoing feedback and guidance as to their progress and skill development.
Strategy 5: Role-plays and Advocacy
The workshop is a weekend intensive providing an opportunity for students to experience the practical aspects of dispute resolution in simulated role-plays and other dispute resolution exercises. Students build on the legal knowledge acquired through the course materials and lectures and seminars and develop communication skills. Feedback is provided as role-plays are completed. At the close of the workshop, students compose a personal report reflecting on the skills gained. Self-reflection provides a feedback mechanism for formal assessment as well as the skills for sustainable practice and development as a practitioner.
Subject Delivery
This course is delivered through lectures, seminars, and a weekend workshop. The compulsory weekend workshop takes place over a Saturday (10.00am - 4.00pm) and Sunday (10.00am - 3.00pm).
Expectation of Student Participation: Full attendance at the two day weekend workshop is compulsory. Eighty-percent (80%) attendance of total subject hours is required to successfully complete this subject.
Content (topics)
- Overview of dispute resolution practice and theory.
- The range of dispute resolution processes, additional to litigation, and the areas of law within which they have current application.
- Distributive and integrative bargaining.
- The seven elements of Principled Negotiation.
- Bargaining styles in negotiation.
- Personality traits and characteristics and their effect on communication and how people negotiate.
- Conflict theories.
- Communication skills, including listening skills, responding skills, questioning, body language, blockers and reframing.
- Issues of gender, culture and power in dispute resolution.
- Ethical issues in dispute resolution and the lawyer / client relationship in the context of ADR.
- Mediation theory and models.
- Dispute Resolution case law and legislation.
- The role of the lawyer in dispute resolution processes, especially in Collaborative Law.
- Dispute resolution practice in a range of jurisdictions including family law, criminal law and commerce.
Assessment
Assessment task 1: Reflection on a negotiation task exercise
| Intent: | This task is intended to enable students to consider how a legal dispute can be resolved without relying exclusively on a rules based procedural paradigm. The task will lead students to engage critically with dispute resolution processes. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1 and LAW.5.1 |
| Weight: | 20% |
| Length: | 800 words |
| Criteria: |
|
Assessment task 2: Seminar Presentation
| Intent: | The task is meant to provide students with the opportunity to develop their advocacy skills and demonstrate knowledge of and critical engagement with dispute resolution processes. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.5.1 and LAW.6.1 |
| Weight: | 50% |
| Length: | 12 minute video including notes and discussion group (1,500 word equivalence). |
| Criteria: |
|
Assessment task 3: Client Advice on DR Processes
| Intent: | This task is designed to enable students to demonstrate their understanding of an holistic approach to a client’s problem including, but not limited to: the legal, financial, commercial and personal outcomes the client wants to achieve; relational issues; type and level of conflict; risk tolerance assessment; transactional costs associated with different processes; and the client’s capacity to participate in dispute resolution processes. This task also assesses students’ understanding of the advantages and disadvantages of a range of dispute resolution processes and provides a creative opportunity for students to organise this new area of legal thinking in an accessible reference format. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1 and LAW.5.1 |
| Weight: | 30% |
| Length: | 2,000 words |
| Criteria: |
|
Required texts
- David Spencer, Lise Barry, Lola Akin Ojelabi Dispute Resolution in Australia: Cases, Commentary and Materials (Lawbook Co, 5th ed, 2023) (or earlier edition).
- Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving in (Random Century Limited, 2nd ed, 1999) or any later edition.
Recommended texts
- Boulle, Laurence and Rachael Field Australian Dispute Resolution Law and Practice (LexisNexis Butterworths 2017)
- Samantha Hardy and Olivia Rundle, Mediation for Lawyers (CCH Australia, 2010)
- Michael King, Arie Freiberg, Becky Batagol, Ross Hyams, Non-Adversarial Justice (The Federation Press, 2nd ed, 2014)
- Tania Sourdin Alternative Dispute Resolution (Thomson Reuters, 5th ed, 2016)
- Julie Macfarlane The New Lawyer: How Settlement is Transforming the Practice of Law (University of British Columbia, 2008)
- Julie Macfarlane The New Lawyer: How Clients are Transforming the Practice of Law (University of British Columbia, 2nd ed, 2017)
-
Gregory Tillet & Brendan French Resolving Conflict: A Practical Approach (Oxford University Press, 4th ed, 2010)
References
- H Abramson Mediation Representation: Advocating in a Problem-Solving Process (NITA 2004)
Other resources
Other Materials: Reports, Journals
Australasian Dispute Resolution Journal, Law Book Co
Negotiation, Plenum Press NY
Ohio State Journal on Dispute Resolution, USA
Useful websites:
www.ag.gov.au/Disputeresolutionhome.nsf/page/home
www.resolutioninstitute.com.au
www.library.uq.edu.au/findits/findit.php?title=Mediation+and+Dispute+Resolution