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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; and
- Identification and application of ethical issues arising in dispute resolution contexts.
Intended learning outcomes
The aim of this subject is to instil 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; and
- Work effectively as a team member to solve problems.
On completion of the subject, students will have developed the following skills:
- Reading, interpreting and analysing statutes (primarily Rules of Court and related statutes);
- Hypothetical problem solving, including an ability to:
- Identify and apply legal, procedural, ethical and strategic considerations arising in complex fact situations.
- 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; and
- Use effective conflict management and resolution techniques in a team context.
- Give and receive constructive feedback;
- Negotiation and mediation, including the ability to:
- Plan for and conduct a negotiation and/or a mediation; and
- Use an interest-based negotiation model.
- Case reading and analysis, including an ability to:
- Extract important features from judgments;
- Reconcile judgments;
- Evaluate the development of legal principles; and
- Apply legal principles arising from case law to new situations.
Last updated: 10 November 2019