This course aims to foster critical examination of a small range of important topics in dispute resolution, emphasising not just mediation, but also other dispute resolution mechanisms such as case appraisal, arbitration, conciliation and negotiation. The course will encourage students to engage with key academic works and policy documents, and to reconcile these with the practical realities of dispute resolution. We will examine a range of current and emerging themes in dispute resolution, which may include: the role of dispute resolution in promoting access to justice; dispute resolution and the role of precedent; cross-cultural perspectives; power and neutrality in theory and practice; and professionalism in dispute resolution. These issues will be examined from both Australian and international perspectives.
Recommended Prior Knowledge
A candidate who has successfully completed this course will:
- Be able to engage with a variety of perspectives of dispute resolution, both endorsing and critiquing dispute resolution;
- Be able to examine and debate the current trends in academic and policy literature, and reconcile these debates with the practice of mediation, arbitration, and other forms of dispute resolution;
- Develop the capacity to think critically about independent and court-annexed dispute resolution, the scope of its practice, and regulation of its practitioners;
- Acquire a theoretical basis for dispute resolution practice through an examination of academic and policy literature; and
- Appreciate the diversity of dispute resolution practice in Australia and internationally.
The topics may vary from year to year depending on other course offerings and current literature, but are expected to include:
- The legal and policy framework of dispute resolution in Australia;
- Dispute resolution and the notion of access to justice;
- Dispute resolution, the doctrine of precedent, and ‘the shadow of the law’;
- The diversity of theoretical perspectives on dispute resolution;
- Power and neutrality in facilitative dispute resolution processes;
- The evaluation of ‘success’, particularly in mediation; and
- The development of ethical and professional regulation of dispute resolution.
Class attendance and participation: 20%
Class presentation: 20%
At this time, there is no single text which covers the proposed course content. Instead, the course will use a reader of around 25-30 journal articles & other documents. These are designed to encourage students to explore a variety of sources and will include, for example:
- D. Luban, Settlements and the Erosion of the Public Realm, (1995) 83 Georgetown Law Journal 2619.
- O. Fiss, Against Settlement, (1984) 93 Yale Law Journal 1073.
- J. W. Stempel, Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait
- Accompli, Failed Overture, or Fledgling Adulthood? (1996) 10 Ohio State Journal on Dispute Resolution 297.
- R. Bush & J. Folger, 'The Mediation Movement: Four Divergent Views' in Bush, R A B and Folger, J P (eds), The Promise of Mediation (Jossey Bass, San Francisco, 1994) 15
- C. Menkel-Meadow, What Will We Do When Adjudication Ends-A Brief Intellectual History of ADR (1997) 44(6) UCLA Law Review 1613.
- R. Pound 'The Causes of Popular Dissatisfaction with the Administration of Justice' (Paper presented at the Pound Conference, St Paul, Minnesota, 29/08/1906).
- C. Savage, Culture and Mediation: A Red Herring. (1996-1997) 5 American University Journal of Gender and Law 269.
- P. Condliffe, Slaying Dragons: Evaluating Mediator Service',. (1999) Australasian Dispute Resolution Journal 130.
- M. Galanter Compared to What? Assessing the Quality of Dispute Processing, (1989) 66 Denver University Law Review XI.
Refer to the course outline which will be provided by the lecturer at the beginning of the relevant semester.