Dispute Resolution

This subject has the following teaching availabilities in 2016:

144 hours

Successful completion of the below subject:

The Melbourne Law School welcomes applications from students with disabilities. It is University and Law School policy to take all reasonable steps to enable the participation of students with disabilities, and reasonable adjustments will be made to enhance a student's participation in the School's programs.

The inherent academic requirements for the study in the Melbourne Law School are:

• The ability to attend classes and actively engage in the analysis 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 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 must possess behavioural and social attributes that enable them to participate in a complex learning environment. Students are required to take responsibility for their own participation and learning. They also contribute to the learning of other students in collaborative learning environments, demonstrating interpersonal skills and an understanding of the needs of other students. Assessment may include the outcomes of tasks completed in collaboration with other students.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact Student Equity and Disability Support.

In this subject students consider the theory and practice of civil dispute resolution through detailed examination and critical analysis of three forms of dispute resolution; negotiation, mediation and litigation. Through detailed analysis of cases, statutes, court rules, academic articles and law reform reports students will build on the legal reading and analysis skills introduced in Legal Method and Reasoning. Students will consider the role of lawyers in assisting the resolution of their client’s disputes in the context of their professional skills, ethical responsibilities and legal obligations. The role of the judges and courts in resolving disputes through adjudication and alternative dispute resolution will also be considered. The subject includes research, group practical exercises, court visits and discussions with legal practitioners and judges.

Topics to be examined in detail include:

• The nature of disputes

• The similarities and differences between dispute avoidance, prevention, management and resolution

• The nature and role of negotiation, mediation and compromise in resolving civil disputes

• The role of lawyers in identifying and using the dispute resolution process most appropriate to the particular dispute

• The role of courts and judges in adjudicating cases and case management in an adversary system

• The cost of litigation, including the role of costs in controlling litigation and access to justice

• The stages in the conduct of a civil proceeding, including identification of jurisdiction, the initiation of proceedings, service, injunctions, pleadings, joinder, discovery, judgment, appeal and enforcement

• Current and future aspects of civil justice law reform

• Identification and application of ethical issues arising in dispute resolution contexts

The aim of this subject is to instill the technical skills and foundational substantive knowledge required for the advanced and integrated understanding of resolving disputes through litigation, negotiation and mediation and the differences and similarities between these methods in resolving civil disputes. These skills and knowledge will be developed through critical analysis of cases, legislation, academic writing and law reform reports and participation in group practical exercises, court visits and discussions with practitioners and judges.

Students who successfully complete the subject will have developed an integrated understanding of the role of three forms of resolving disputes and be able to:

• Critically analyse and evaluate a civil dispute including complex factual scenarios and provide advice as to the most appropriate method of resolving the dispute

• Demonstrate the ability to research, analyse and critique current theories, perspectives and developments in civil dispute resolution

• Identify ethical issues and demonstrate judgement and responsibility in the process of resolving disputes in practical exercises

• Identify and locate relevant principles in cases, statutes and court rules and apply those principles to fact scenarios in order to provide well reasoned advice about the legal obligations of parties and the appropriate steps parties should take to resolve their dispute

• Work effectively as a team member to solve problems

• 2,000 word written paper (30%);
• Supervised 3-hour (open book) examination during the University exam period (70%).

The due date of the above assessment will be available to students via the LMS.

• David Bamford and Mark Rankin, Principles of Civil Litigation (Thomson Reuters, 2nd ed, 2014);
• Specialist printed materials will also be made available from the Melbourne Law School.

This subject is not available as a breadth subject.

On completion of the subject, students will have developed the following skills:

1. Reading, interpreting and analysing statutes (primarily Rules of Court and related statutes);

2. Hypothetical problem solving, including an ability to:

• Identify and apply legal, procedural, ethical and strategic considerations arising in complex fact situations.

3. Teamwork, including the ability to:

• Identify and implement processes to promote effective teamwork;

• Understand the impact of individual characteristics (for example, personality and culture) on group processes;

• Use effective conflict management and resolution techniques in a team context.

4. Give and receive constructive feedback;

5. Negotiation and mediation, including the ability to:

• Plan for and conduct a negotiation and/or a mediation;

• Use an interest-based negotiation model.

6. Case reading and analysis, including an ability to:

• Extract important features from judgments;

• Reconcile judgments;

• Evaluate the development of legal principles;

• Apply legal principles arising from case law to new situations.