General Information
Dispute Resolution: Practice and Procedure is an elective subject in postgraduate programs offered by the Faculty of Law. This subject is designed to complement the subject Dispute Resolution: Theories and Principles. It deals with a range of practical aspects of dispute resolution with a focus on the roles of legal practitioners as third party interveners (mediators and arbitrators) and as legal representatives for the parties in a range of dispute resolution processes (including those of negotiation, mediation, collaborative law and arbitration). The subject is designed to prepare students for those aspects of dispute resolution which have practical application in the day to day practice of lawyers, taking into account current trends in dispute resolution in the Australian civil justice system. The subject examines a range of issues, from advising clients about the benefits (and disadvantages) of particular dispute resolution processes, to helping clients deal with psychological impediments to settlement, to drafting the terms of settlement reached by the parties.
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Details
Academic unit: Faculty of Law Subject code: LAWS77-772 Subject title: Dispute Resolution: Practice and Procedure Subject level: Postgraduate Semester/Year: January 2020 Credit points: 10.000 -
Delivery & attendance
Timetable: https://bond.edu.au/timetable Delivery mode: Mixed (Face-to-Face) Workload items: - Seminar: x1 (Total hours: 6) - Seminar 1
- Seminar: x1 (Total hours: 6) - Seminar 2
- Directed Online Activity: x6 (Total hours: 12) - Online Modules
- Personal Study Hours: x12 (Total hours: 96) - Recommended Study Hours
Attendance and learning activities: -
Resources
Prescribed resources: Books
- Laurence Boulle,Nadja Marie Alexander (2012). Mediation: Skills and Techniques. 2nd, Australia LexisNexis
iLearn@Bond & Email: iLearn@Bond is the online learning environment at Bond University and is used to provide access to subject materials, lecture recordings and detailed subject information regarding the subject curriculum, assessment and timing. Both iLearn and the Student Email facility are used to provide important subject notifications. Additionally, official correspondence from the University will be forwarded to students’ Bond email account and must be monitored by the student. To access these services, log on to the Student Portal from the Bond University website as www.bond.edu.au
| Academic unit: | Faculty of Law |
|---|---|
| Subject code: | LAWS77-772 |
| Subject title: | Dispute Resolution: Practice and Procedure |
| Subject level: | Postgraduate |
| Semester/Year: | January 2020 |
| Credit points: | 10.000 |
| Timetable: | https://bond.edu.au/timetable |
|---|---|
| Delivery mode: | Mixed (Face-to-Face) |
| Workload items: |
|
| Attendance and learning activities: |
| Prescribed resources: | Books
|
|---|---|
| iLearn@Bond & Email: | iLearn@Bond is the online learning environment at Bond University and is used to provide access to subject materials, lecture recordings and detailed subject information regarding the subject curriculum, assessment and timing. Both iLearn and the Student Email facility are used to provide important subject notifications. Additionally, official correspondence from the University will be forwarded to students’ Bond email account and must be monitored by the student. To access these services, log on to the Student Portal from the Bond University website as www.bond.edu.au |
Enrolment requirements
| Requisites: |
Nil |
|---|---|
| Assumed knowledge: |
Assumed knowledge is the minimum level of knowledge of a subject area that students are assumed to have acquired through previous study. It is the responsibility of students to ensure they meet the assumed knowledge expectations of the subject. Students who do not possess this prior knowledge are strongly recommended against enrolling and do so at their own risk. No concessions will be made for students’ lack of prior knowledge. Juris Doctor students are expected to have completed a minimum of 80 credit points of compulsory law subjects. |
| Restrictions: |
Nil |
Assurance of learning
Assurance of Learning means that universities take responsibility for creating, monitoring and updating curriculum, teaching and assessment so that students graduate with the knowledge, skills and attributes they need for employability and/or further study.
At Bond University, we carefully develop subject and program outcomes to ensure that student learning in each subject contributes to the whole student experience. Students are encouraged to carefully read and consider subject and program outcomes as combined elements.
Program Learning Outcomes (PLOs)
Program Learning Outcomes provide a broad and measurable set of standards that incorporate a range of knowledge and skills that will be achieved on completion of the program. If you are undertaking this subject as part of a degree program, you should refer to the relevant degree program outcomes and graduate attributes as they relate to this subject.
Subject Learning Outcomes (SLOs)
On successful completion of this subject the learner will be able to:
- Identify possible causes of conflict and list the ways in which their clients might respond to conflict; define a range of dispute resolution processes (including negotiation, mediation, collaborative law, arbitration and litigation); identify and compare the usual characteristics of these processes; outline a number of potential advantages and disadvantages of these processes from a variety of perspectives; describe the stages involved in the processes of negotiation and mediation; describe the role and functions of third party interveners and of legal practitioners within these processes; be familiar with the court's pre- and post-filing dispute resolution requirements.
- Understand the ethical obligations of lawyers in particular processes; be aware of the psychological impediments to settlement; understand the way in which mediators may influence the course and outcome of mediation; understand how they can facilitate their client's participation in these processes.
- Be proficient at advising clients about appropriate dispute resolution options, preparing their clients for participation in various processes, preparing for and participating in negotiation and mediation as a legal representative for their clients, drafting of dispute resolution clauses.
- Show awareness of the "minimal" ethical and professional responsibilities of lawyers who represent parties in negotiation; they should understand the values which underlie mediation; and recognise and respond appropriately to some of the ethical dilemmas faced by legal representatives and by lawyer mediators.
Generative Artificial Intelligence in Assessment
The University acknowledges that Generative Artificial Intelligence (Gen-AI) tools are an important facet of contemporary life. Their use in assessment is considered in line with students’ development of the skills and knowledge which demonstrate learning outcomes and underpin study and career success. Instructions on the use of Gen-AI are given for each assessment task; it is your responsibility to adhere to these instructions.
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Assessment details
Type Task % Timing* Outcomes assessed *Class Participation Participation in a range of activities at the intensive 30% Ongoing 1,2,3,4 Essay Research paper 70% To Be Negotiated 1,2,4 - * Assessment timing is indicative of the week that the assessment is due or begins (where conducted over multiple weeks), and is based on the standard University academic calendar
- C = Students must reach a level of competency to successfully complete this assessment.
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Assessment criteria
Assessment criteria
High Distinction 85-100 Outstanding or exemplary performance in the following areas: interpretative ability; intellectual initiative in response to questions; mastery of the skills required by the subject, general levels of knowledge and analytic ability or clear thinking. Distinction 75-84 Usually awarded to students whose performance goes well beyond the minimum requirements set for tasks required in assessment, and who perform well in most of the above areas. Credit 65-74 Usually awarded to students whose performance is considered to go beyond the minimum requirements for work set for assessment. Assessable work is typically characterised by a strong performance in some of the capacities listed above. Pass 50-64 Usually awarded to students whose performance meets the requirements set for work provided for assessment. Fail 0-49 Usually awarded to students whose performance is not considered to meet the minimum requirements set for particular tasks. The fail grade may be a result of insufficient preparation, of inattention to assignment guidelines or lack of academic ability. A frequent cause of failure is lack of attention to subject or assignment guidelines. Quality assurance
For the purposes of quality assurance, Bond University conducts an evaluation process to measure and document student assessment as evidence of the extent to which program and subject learning outcomes are achieved. Some examples of student work will be retained for potential research and quality auditing purposes only. Any student work used will be treated confidentially and no student grades will be affected.
| Type | Task | % | Timing* | Outcomes assessed |
|---|---|---|---|---|
| *Class Participation | Participation in a range of activities at the intensive | 30% | Ongoing | 1,2,3,4 |
| Essay | Research paper | 70% | To Be Negotiated | 1,2,4 |
- * Assessment timing is indicative of the week that the assessment is due or begins (where conducted over multiple weeks), and is based on the standard University academic calendar
- C = Students must reach a level of competency to successfully complete this assessment.
Assessment criteria
| High Distinction | 85-100 | Outstanding or exemplary performance in the following areas: interpretative ability; intellectual initiative in response to questions; mastery of the skills required by the subject, general levels of knowledge and analytic ability or clear thinking. |
|---|---|---|
| Distinction | 75-84 | Usually awarded to students whose performance goes well beyond the minimum requirements set for tasks required in assessment, and who perform well in most of the above areas. |
| Credit | 65-74 | Usually awarded to students whose performance is considered to go beyond the minimum requirements for work set for assessment. Assessable work is typically characterised by a strong performance in some of the capacities listed above. |
| Pass | 50-64 | Usually awarded to students whose performance meets the requirements set for work provided for assessment. |
| Fail | 0-49 | Usually awarded to students whose performance is not considered to meet the minimum requirements set for particular tasks. The fail grade may be a result of insufficient preparation, of inattention to assignment guidelines or lack of academic ability. A frequent cause of failure is lack of attention to subject or assignment guidelines. |
Quality assurance
For the purposes of quality assurance, Bond University conducts an evaluation process to measure and document student assessment as evidence of the extent to which program and subject learning outcomes are achieved. Some examples of student work will be retained for potential research and quality auditing purposes only. Any student work used will be treated confidentially and no student grades will be affected.
Study Information
Submission procedures
Students must check the iLearn@Bond subject site for detailed assessment information and submission procedures.
Policy on late submission and extensions
A late penalty will be applied to all overdue assessment tasks unless an extension is granted by the subject coordinator. The standard penalty will be 10% of marks awarded to that assessment per day late with no assessment to be accepted seven days after the due date. Where a student is granted an extension, the penalty of 10% per day late starts from the new due date.
Academic Integrity
University’s Academic Integrity Policy defines plagiarism as the act of misrepresenting as one’s own original work: another’s ideas, interpretations, words, or creative works; and/or one’s own previous ideas, interpretations, words, or creative work without acknowledging that it was used previously (i.e., self-plagiarism). The University considers the act of plagiarising to be a breach of the Student Conduct Code and, therefore, subject to the Discipline Regulations which provide for a range of penalties including the reduction of marks or grades, fines and suspension from the University.
Bond University utilises Originality Reporting software to inform academic integrity.Feedback on assessment
Feedback on assessment will be provided to students within two weeks of the assessment submission due date, as per the Assessment Policy.
Accessibility and Inclusion Support
If you have a disability, illness, injury or health condition that impacts your capacity to complete studies, exams or assessment tasks, it is important you let us know your special requirements, early in the semester. Students will need to make an application for support and submit it with recent, comprehensive documentation at an appointment with a Disability Officer. Students with a disability are encouraged to contact the Disability Office at the earliest possible time, to meet staff and learn about the services available to meet your specific needs. Please note that late notification or failure to disclose your disability can be to your disadvantage as the University cannot guarantee support under such circumstances.
Additional subject information
Students may be asked to respond to questions from the subject coordinator regarding the content of their assessments. Students are expected to keep evidence of drafting and research.
Subject curriculum
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Topic 1: Introduction to DR practice in the legal system
Introduction to the subject. Understanding the nature of contemporary DR practice in legal contexts. Introduction to the key DR processes used by lawyers. Comparison of the usual characteristics of unassisted negotiation, assisted negotiation and adjudication; identification of possible advantages and disadvantages of the processes.
SLOs included
- Identify possible causes of conflict and list the ways in which their clients might respond to conflict; define a range of dispute resolution processes (including negotiation, mediation, collaborative law, arbitration and litigation); identify and compare the usual characteristics of these processes; outline a number of potential advantages and disadvantages of these processes from a variety of perspectives; describe the stages involved in the processes of negotiation and mediation; describe the role and functions of third party interveners and of legal practitioners within these processes; be familiar with the court's pre- and post-filing dispute resolution requirements.
- Understand the ethical obligations of lawyers in particular processes; be aware of the psychological impediments to settlement; understand the way in which mediators may influence the course and outcome of mediation; understand how they can facilitate their client's participation in these processes.
- Be proficient at advising clients about appropriate dispute resolution options, preparing their clients for participation in various processes, preparing for and participating in negotiation and mediation as a legal representative for their clients, drafting of dispute resolution clauses.
- Show awareness of the "minimal" ethical and professional responsibilities of lawyers who represent parties in negotiation; they should understand the values which underlie mediation; and recognise and respond appropriately to some of the ethical dilemmas faced by legal representatives and by lawyer mediators.
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Topic 2: Diagnosing disputes
Understanding the positive and negative effects of conflict for clients, the contexts within which conflicts commonly arise, and the underlying causes of conflict; examination of the ways in which people respond to conflict and disputes. Skills and processes for diagnosing appropriate DR options for particular disputes. Awareness of ethical requirements to advise clients in relation to DR; advising clients about the range of processes available and the most appropriate process choice.
SLOs included
- Identify possible causes of conflict and list the ways in which their clients might respond to conflict; define a range of dispute resolution processes (including negotiation, mediation, collaborative law, arbitration and litigation); identify and compare the usual characteristics of these processes; outline a number of potential advantages and disadvantages of these processes from a variety of perspectives; describe the stages involved in the processes of negotiation and mediation; describe the role and functions of third party interveners and of legal practitioners within these processes; be familiar with the court's pre- and post-filing dispute resolution requirements.
- Understand the ethical obligations of lawyers in particular processes; be aware of the psychological impediments to settlement; understand the way in which mediators may influence the course and outcome of mediation; understand how they can facilitate their client's participation in these processes.
- Be proficient at advising clients about appropriate dispute resolution options, preparing their clients for participation in various processes, preparing for and participating in negotiation and mediation as a legal representative for their clients, drafting of dispute resolution clauses.
- Show awareness of the "minimal" ethical and professional responsibilities of lawyers who represent parties in negotiation; they should understand the values which underlie mediation; and recognise and respond appropriately to some of the ethical dilemmas faced by legal representatives and by lawyer mediators.
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Topic 3: Mediation practice and procedure
Identification of the objectives and defining characteristics of a number of models of mediation. Introduction to a range of skills used by mediators with particular emphasis placed on process skills such as presentation and delivery of the mediator's opening statement, techniques for developing and whiteboarding the negotiation agenda, and techniques for moving from one stage to the next in the mediation process; reinforcement of communication and problem-solving skills.
SLOs included
- Identify possible causes of conflict and list the ways in which their clients might respond to conflict; define a range of dispute resolution processes (including negotiation, mediation, collaborative law, arbitration and litigation); identify and compare the usual characteristics of these processes; outline a number of potential advantages and disadvantages of these processes from a variety of perspectives; describe the stages involved in the processes of negotiation and mediation; describe the role and functions of third party interveners and of legal practitioners within these processes; be familiar with the court's pre- and post-filing dispute resolution requirements.
- Understand the ethical obligations of lawyers in particular processes; be aware of the psychological impediments to settlement; understand the way in which mediators may influence the course and outcome of mediation; understand how they can facilitate their client's participation in these processes.
- Be proficient at advising clients about appropriate dispute resolution options, preparing their clients for participation in various processes, preparing for and participating in negotiation and mediation as a legal representative for their clients, drafting of dispute resolution clauses.
- Show awareness of the "minimal" ethical and professional responsibilities of lawyers who represent parties in negotiation; they should understand the values which underlie mediation; and recognise and respond appropriately to some of the ethical dilemmas faced by legal representatives and by lawyer mediators.
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Topic 4: Negotiation practice and procedure
Development of an ability to distinguish positional and interest-based negotiation; identification and development of the skills of an effective negotiator; identification and use of a wide range of tactics; how to prepare effectively for negotiation, mediation, and rights-based processes including arbitration and litigation; introduction to a range of negotiation and advocacy skills.
SLOs included
- Identify possible causes of conflict and list the ways in which their clients might respond to conflict; define a range of dispute resolution processes (including negotiation, mediation, collaborative law, arbitration and litigation); identify and compare the usual characteristics of these processes; outline a number of potential advantages and disadvantages of these processes from a variety of perspectives; describe the stages involved in the processes of negotiation and mediation; describe the role and functions of third party interveners and of legal practitioners within these processes; be familiar with the court's pre- and post-filing dispute resolution requirements.
- Understand the ethical obligations of lawyers in particular processes; be aware of the psychological impediments to settlement; understand the way in which mediators may influence the course and outcome of mediation; understand how they can facilitate their client's participation in these processes.
- Be proficient at advising clients about appropriate dispute resolution options, preparing their clients for participation in various processes, preparing for and participating in negotiation and mediation as a legal representative for their clients, drafting of dispute resolution clauses.
- Show awareness of the "minimal" ethical and professional responsibilities of lawyers who represent parties in negotiation; they should understand the values which underlie mediation; and recognise and respond appropriately to some of the ethical dilemmas faced by legal representatives and by lawyer mediators.
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Topic 5: Communication skills
Understanding of key DR communication skills including listening, acknowledgment, reframing, summarising and questioning. Development of an awareness of some of the impediments to effective communication and problem-solving and common communication mistakes in conflict contexts; identification and use of a range of listening skills and non-verbal communication; identification and use a number of problem-solving techniques.
SLOs included
- Identify possible causes of conflict and list the ways in which their clients might respond to conflict; define a range of dispute resolution processes (including negotiation, mediation, collaborative law, arbitration and litigation); identify and compare the usual characteristics of these processes; outline a number of potential advantages and disadvantages of these processes from a variety of perspectives; describe the stages involved in the processes of negotiation and mediation; describe the role and functions of third party interveners and of legal practitioners within these processes; be familiar with the court's pre- and post-filing dispute resolution requirements.
- Understand the ethical obligations of lawyers in particular processes; be aware of the psychological impediments to settlement; understand the way in which mediators may influence the course and outcome of mediation; understand how they can facilitate their client's participation in these processes.
- Be proficient at advising clients about appropriate dispute resolution options, preparing their clients for participation in various processes, preparing for and participating in negotiation and mediation as a legal representative for their clients, drafting of dispute resolution clauses.
- Show awareness of the "minimal" ethical and professional responsibilities of lawyers who represent parties in negotiation; they should understand the values which underlie mediation; and recognise and respond appropriately to some of the ethical dilemmas faced by legal representatives and by lawyer mediators.
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Topic 6: Encouraging settlement
Understanding the importance of encouraging settlement for DR and good lawyering. Understanding power and risk in DR contexts. Key methods and styles for lawyers and mediators to appropriately encourage settlement. Understanding key ethical and practical dangers that arise with encouraging settlement.
SLOs included
- Identify possible causes of conflict and list the ways in which their clients might respond to conflict; define a range of dispute resolution processes (including negotiation, mediation, collaborative law, arbitration and litigation); identify and compare the usual characteristics of these processes; outline a number of potential advantages and disadvantages of these processes from a variety of perspectives; describe the stages involved in the processes of negotiation and mediation; describe the role and functions of third party interveners and of legal practitioners within these processes; be familiar with the court's pre- and post-filing dispute resolution requirements.
- Understand the ethical obligations of lawyers in particular processes; be aware of the psychological impediments to settlement; understand the way in which mediators may influence the course and outcome of mediation; understand how they can facilitate their client's participation in these processes.
- Be proficient at advising clients about appropriate dispute resolution options, preparing their clients for participation in various processes, preparing for and participating in negotiation and mediation as a legal representative for their clients, drafting of dispute resolution clauses.
- Show awareness of the "minimal" ethical and professional responsibilities of lawyers who represent parties in negotiation; they should understand the values which underlie mediation; and recognise and respond appropriately to some of the ethical dilemmas faced by legal representatives and by lawyer mediators.
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Topic 7: DR special issues and challenges
Sensitivity to cultural diversity - the importance of cultural competence in DR contexts. Understanding of different cultural responses to mediation systems design. Understanding of the connection between culture, society and dispute resolution. Ethics - understanding of key DR ethics such as confidentiality and impartiality. Ethical and professional responsibility of legal advocates in DR; and the ethical responsibilities of mediators under the National Mediation Accreditation System.
SLOs included
- Identify possible causes of conflict and list the ways in which their clients might respond to conflict; define a range of dispute resolution processes (including negotiation, mediation, collaborative law, arbitration and litigation); identify and compare the usual characteristics of these processes; outline a number of potential advantages and disadvantages of these processes from a variety of perspectives; describe the stages involved in the processes of negotiation and mediation; describe the role and functions of third party interveners and of legal practitioners within these processes; be familiar with the court's pre- and post-filing dispute resolution requirements.
- Understand the ethical obligations of lawyers in particular processes; be aware of the psychological impediments to settlement; understand the way in which mediators may influence the course and outcome of mediation; understand how they can facilitate their client's participation in these processes.
- Be proficient at advising clients about appropriate dispute resolution options, preparing their clients for participation in various processes, preparing for and participating in negotiation and mediation as a legal representative for their clients, drafting of dispute resolution clauses.
- Show awareness of the "minimal" ethical and professional responsibilities of lawyers who represent parties in negotiation; they should understand the values which underlie mediation; and recognise and respond appropriately to some of the ethical dilemmas faced by legal representatives and by lawyer mediators.