Avoid and Manage Construction Disputes

This subject has the following teaching availabilities in 2013:

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact the Disability Liaison Unit: www.services.unimelb.edu.au/disability/

The complexities of the commercial and technical environment in which construction projects are undertaken make disputes virtually inevitable. Participants in the industry – whether lawyers or industry professionals – therefore need to be aware of, and able to apply, a range of dispute avoidance and management techniques when putting together contractual documentation or administering projects. These options are constantly evolving, with recent examples including the increasing use of Disputes Boards and court-initiated procedures such as those being implemented by the Technology Engineering and Construction List of the Victorian Supreme Court.

The subject lecturer, David Opperman, leads the Herbert Smith Freehills Project Dispute Resolution group. He is able to bring to the classroom extensive experience in the active resolution of disputes in construction projects by mediation and other alternative dispute resolution processes, as well as through international and domestic arbitration and litigation processes. He also involves guest lecturers who have specialist, cuttingedge experience in dispute avoidance and alternative dispute resolution techniques.

Principal topics will include:

• Construction contract provisions relating to disputes: Objectives, approaches and enforceability
• Conflict: Conflict patterns and management
• Communication and negotiation skills
• DAPs: Dispute Review Boards (DRBs), Dispute Adjudication Boards (DABs) and dispute resolution advisers (DRAs)
• ADR: Mediation (including mock mediation), senior executive appraisal/ mini trials, non-binding and binding expert determination, domestic and international arbitration and hybrid and multi-tiered processes
• Selecting the most appropriate form of DAP and/or ADR processes
• Process dynamics, options and strategic issues, including paths to ADR.

A student who has successfully completed this subject should:

• Be able to identify the causes of disputes on construction projects
• Understand the psychology of conflict and how it can be effectively managed
• Understand the broad range of dispute avoidance and management options available and their relationship to judicial and arbitral processes
• Be able to critically assess and advise on contract provisions relating to disputes
• Be able to determine the most appropriate form of dispute avoidance processes (DAPs) and alternative dispute resolution (ADR) for any given project or dispute
• Be able to negotiate, communicate and participate in dispute resolution processes.

Take-home examination (100%) (29 November–2 December)

Core subject materials will be provided free of charge to all students. Some subjects require further texts to be purchased. Visit the Melbourne Law Masters website for more information about this subject.

This subject is not available as a breadth subject.