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Mediation has developed over the past twenty years from the legal fringes to become the process which resolves more legal disputes than any other. The aim of this course, building on concepts studied in the JD compulsory subject LAWS90140 Disputes and Ethics (formerly LAWS50027 Dispute Resolution), is to develop an understanding of what takes place within the private confines of mediation to make the process effective, and how the different participants interact.
Students will learn both the practice of mediation, through extensive involvement in simulations, and develop a sophisticated understanding of current mediation law and theory.
The subject will examine when and how mediations take place, the roles of all persons involved, the legal frameworks supporting and promoting mediation, and the interaction of mediation with other dispute resolution mechanisms. It will provide an overview of mediation in specific legal contexts, such as commercial litigation and family law, and look in detail at a number of statutory mediation schemes such as the Farm Debt Mediation Act 2011 (Vic.). It will examine mediation as a career within the broader legal landscape and the evolution of the National Mediator Accreditation Scheme.
Teaching will be through a combination of lectures on specific topics, interactive exercises and mediation simulations, and contributions by visiting speakers with specific expertise.
Intended learning outcomes
A student who has successfully completed this subject will have an advanced and integrated understanding of the role of mediation in resolving disputes, and will be able to:
- Understand and apply the main theories related to mediation as a form of conflict resolution;
- identify at what point in a dispute, mediation is likely to be effective;
- make an informed decision about what style of mediation suits the specific nature of a dispute and the parties;
- recognise the stages of a typical mediation, and understand how they can be adapted to changing dynamics when appropriate;
- facilitate a discussion which assists a disputant to understand better their own best interests and how to achieve them;
- understand the balance between mediators catalysing a useful negotiation and becoming too directive;
- develop their legal skills to act as advocate and adviser for a party at mediation; and
- understand the legal framework of mediation accreditation in Australia and mediation trends internationally.
This course will assist students to develop further the following skills:
- Analytical problem solving – through case study exercises to determine options and alternatives at mediation;
- advocacy- recognising that mediation has a different decision-making approach to litigation, so requires a different style of advocacy;
- judgement under pressure – mediation is about making decisions rather than submitting to judgement;
- coordination of a support team – understanding and maximising the teamwork of parties, solicitors, barristers, experts and other participants and the mediator;
- communication in emotionally difficult situations – recognising and dealing with the stress of conflict;
- tactical negotiation – acknowledging that mediation can become a tactical game, and how to play it; and
- understanding where mediation fits within a broader dispute – seeing mediation in the broader context of legal issues and other practical considerations.
Last updated: 10 November 2023