Mediation in Commerce

This subject has the following teaching availabilities in 2016:

This subject has a quota of 30 students. Please refer to the Melbourne Law Masters website for further information about the management of subject quotas and waitlists.

136-150 hours

The pre-teaching period commences four weeks before the subject commencement date. From this time, students are expected to access and review the Reading Guide that will be available from the LMS subject page and the subject materials provided by the subject coordinator, which will be available from Melbourne Law School. Refer to the Reading Guide for confirmation of which resources need to be read and what other preparation is required before the teaching period commences.

Melbourne Law Masters Students: None

JD Students: Successful completion of the below subject:

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 Student Equity and Disability Support.

With a primary focus on experiential learning and interactive discussion, this subject will provide a practical guide to the use of mediation in commercial disputes and to the legal environment in which commercial mediation takes place. The objectives of this subject are to identify where mediation sits among available dispute resolution processes; its distinguishing characteristics and advantages; the applicable legal environment; the styles of mediation generally employed in commercial disputes such as insurance, construction, retail tenancy, intellectual property infringement and licensing and government regulation; to learn to apply mediation principles and techniques in the resolution of commercial disputes; and to explore topical issues in commercial mediation, including how and when to use hybrid processes such as Arb-Med-Arb, and different regimes applicable to the admissibility of evidence of communications within mediation.

The lecturers are lawyers who have led and been at the cutting edge of developing mediation and other ADR techniques. They are nationally accredited mediators and also have substantial experience in teaching and training in this field.

Principal topics include:

• Identifying the characteristics of different dispute resolution methods
• The roles of facilitative and evaluative techniques in commercial mediation
• Practising mediation techniques in a commercial mediation scenario
• The legislative environment in which commercial mediation takes place
• Case law and guidelines for lawyers applicable to commercial mediation.

A student who has successfully completed this subject will:

• Have a sophisticated appreciation of the place of mediation on the dispute resolution continuum and the distinguishing characteristics of mediation in commerce
• Have the cognitive, technical and creative skills to identify, prepare for and engage effectively in the various stages of commercial mediation, through the opportunities provided by experiential learning
• Have an advanced and integrated understanding of the legal principles governing commercial mediation and recent developments in the field, including in relation to confidentiality and inadmissibility
• Have a detailed understanding of the role played by courts and the legislature in encouraging and directing mediation in commerce and the differing characteristics of voluntary and court-ordered mediation.

• Participation in class exercises (5%) and role plays (15%), including supporting the learning of others
• Group Project, including a Mediation Plan and Opening Address (30%) - Group Project involves mock mediations that take place on 11 – 12 April, based on papers handed out on 8 April. Written mediation plans (word limit 2,000) and written opening addresses (word limit 1,500) are due on the morning of 11 April and both may be amended if desired by 18 April
• 5,000 word research paper (50%) (15 June) on a topic approved by the subject coordinator
• Reflective Journal following classes (required, but no mark awarded) (April 18)

A minimum of 75% attendance is a hurdle requirement.

Specialist printed materials will be made available free of charge from the Melbourne Law School prior to the pre-teaching period.

This subject is not available as a breadth subject.