77761 Dispute Resolution in Commerce
Warning: The information on this page is indicative. The subject outline for a
particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2017 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): (79771c Dispute Resolution AND (22 credit points of completed study in spk(s): C04147 Master of Legal Studies OR 22 credit points of completed study in spk(s): C07074 Graduate Diploma Legal Studies OR 22 credit points of completed study in spk(s): C04264 Master of Legal Studies OR 22 credit points of completed study in spk(s): C07122 Graduate Diploma Legal Studies)) OR (79771 Dispute Resolution AND 78101c Postgraduate Legal Research) OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law AND 79771 Dispute Resolution) OR (94 credit points of completed study in spk(s): C04320 Juris Doctor Graduate Certificate Professional Legal Practice AND 70106 Principles of Public International Law)
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Anti-requisite(s): 78124 Dispute Resolution in Commerce
Description
There is an increasing demand for the development of dispute resolution systems that avoid an adversarial approach in commercial environments where delay, high legal costs and limited possible outcomes are being perceived as counterproductive in the highly competitive commercial environment.
This subject provides an overview of dispute management and complaints handling systems, together with further consideration of the developing body of dispute resolution and negotiation theory and practice in the commercial context. Students investigate, analyse and critique existing and emerging dispute resolution systems in commerce, business, construction and finance.
Students study legislative responses for processes and process providers in resolving and settling commercial disputes. Through interactive lectures, group and class exercises, role-plays and expert guest lectures, students learn about the context of changing corporate structures and cultures and the demands for effective, accessible, cost efficient and ethical methods for dealing with commercial disputes, including determinative and hybrid processes. Students further develop research and communication skills through a research paper and a seminar presentation on a selected topic in commercial dispute resolution.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Investigate, synthesise and evaluate a range of dispute resolution theories and articulate their relevance to the analysis of commerce and commercially relevant aspects of disputes; |
|---|---|
| 2. | Critically analyse and distinguish dispute resolution processes and systems that are being incorporated into legislation and codes in respect of national and international commercial arbitration, native title claims, farm debt, online dispute resolution, the banking and telecommunications arenas, franchising, judicial mediation and other legislated conflict resolutions systems arising in the commercial environment; |
| 3. | Conduct effective research by identifying and synthesising primary and secondary legal and interdisciplinary texts in order to investigate the relationship between law and dispute resolution in the commercial environment; |
| 4. | Construct and effectively articulate critical, justifiable, persuasive and well-reasoned scholarly arguments. |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes:
- Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively about non-adversarial dispute resolution processes, including the ability to identify and articulate complex issues, apply reasoning and research to generate appropriate responses to problems and engage in critical analysis (3.0) - Research Skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues and demonstrate intellectual and practical skills necessary to justify and interpret theoretical propositions, legal methodologies, conclusions and professional decisions. (4.0) - Communication and Collaboration
Effective and appropriate academic and professional communication skills including:
Highly effective use of the English language, to convey and comprehend, legal concepts and views, in relevant and appropriate modes and to different audiences;
An ability to communicate to inform, analyse, report, evaluate, argue and persuade; and
An ability to express and structure a sustained and logical argument (5.0)
Teaching and learning strategies
Strategy 1
Independent and self-directed Learning
Student learning will be most effective when students are actively engaged in the learning process. Therefore, all students undertaking this subject are strongly encouraged to prepare before, and actively participate in, class. The value of interactive learning and teaching lies in its encouragement of higher order thinking skills such as critical analysis and evaluation. These are part of the subject objectives identified above. Class-time provides opportunities for students to practise the skills and theories presented in previous classes and to build upon the subject materials provided in class and on UTSOnline. There are materials such as case scenarios, legislation, commentary and audio-visual material that students are expected to familiarise themselves with prior to the three day block class. These resources will also enable students to clarify concepts and terminology before the seminar day, while the preparation activities enable students to participate effectively in the activities detailed below.
Strategy 2
Role-plays, Exercises and Debriefs
Class exercises and role-plays are used throughout the intensive block to help students explore topic related scenarios. Students build on the disciplinary knowledge and skills acquired through the subject materials and lectures to develop their communication skills. Students use these exercises and role-plays to learn concepts, interpret information, practise advocacy and develop creative solutions. Critical thinking is developed through analysis, interpretation of, and reflection on, issues or situations. Students have ongoing opportunities to ask questions about any aspect of the exercises and receive ongoing feedback and guidance as to their progress and skill development.
Strategy 3
Engaging in Lectures and Seminars
Because of the interactive nature of this subject, students benefit most from the real time delivery of content. Lectures and discussions are used in this subject to explain points or topics that students have had difficulty with in the past, to assist students to analyse, evaluate and present an argument or skill in dispute resolution, introduce or give background to a class activity, and to summarise and/or to give the lecturer’s view on a prior class discussion or activity. Engaging in lectures enable students to clarify, discuss and develop subject concepts. Additionally, students practise the skills and theories presented in previous discussions and preparation. Immediate formative feedback is provided by peers and teaching staff throughout the lectures and discussions.
Strategy 4
Oral Presentations
Seminars involve students individually presenting on designated topics. Students receive feedback from peers and teaching staff not only on their knowledge of a subject area but also their ability to advocate client interests and communicate their thoughts and relevant information in a clear, coherent and confident manner. Feedback from oral presentations is instructive for the final research essay. This task provides an opportunity to develop oral advocacy skills and demonstrate an advanced and integrated knowledge of and critical engagement with dispute resolution theories and/or practices.
Strategy 5
Feedback
Individual and group feedback is provided to students during and after completion of each role-play throughout the intensive block. Students receive ‘on the spot’ instruction and support from teaching staff as well as having many opportunities to discuss their experiences with their peers and engage in individual self-evaluation. Students incrementally develop and increase their commercial dispute resolution skills through experimenting with new techniques in simulations, receiving feedback and adjusting their approaches and understanding over the subject of the intensive block. The formal debrief which concludes each simulation also ensures that students integrate practice with theory and reflect on their improvement as the subject progresses. Written feedback is provided for the assessment tasks.
Subject Delivery
The subject is presented in block mode over 4 days: a three-day intensive block plus one seminar day.
The intensive block will take place on [Spring 2018 TBC] and the seminar day on [Spring 2018 TBC].
Eighty percent attendance (80%) of this programme is a requirement for successful completion of this subject. Attendance for all student presentations is a pre-requisite for assessment in this subject.
Content (topics)
- Commercial problem definition; domestic and international context
- Dispute Management
- Dispute Management System design
- Complaint Handling
- Contractual issues, model clauses and standards
- Risk analysis
- Legislated Dispute Resolution schemes and processes:
- Industry funded dispute resolution schemes
- Government services for small business disputes
- International commercial dispute resolution
- Process development:
- mediation and conciliation models;
- non-adversarial and quasi-adversarial determinative processes:
- expert appraisal, expert assessment, expert determination
- arbitration and arbitral hybrids.
- Decision Analysis and Decision making
- Further developments:
- DR in eCommerce;
- Collaborative Law in the commercial environment
Assessment
Assessment task 1: Attendance and Participation
| Intent: | This assessment task is intended to assess students’ active contributions to seminar and class discussions and activities, focusing on their ability to critically analyse the material presented and communicate their knowledge and thinking coherently. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1 and 4 This task contributes specifically to the development of the following graduate attributes: 3.0 and 5.0 |
| Weight: | 20% |
| Length: | 1,000 word equivalent |
| Criteria: |
|
Assessment task 2: Seminar Presentation
| Intent: | This task provides an opportunity to develop oral advocacy skills. It assesses students’ ability to effectively and professionally communicate relevant, timely and critical research in the analysis of commerce and commercially relevant aspects of disputes. It also provides students with feedback on performance in the subject in relation to skills in analysing and evaluating complex problems and effectively communicating solutions. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 3 and 4 This task contributes specifically to the development of the following graduate attributes: 3.0, 4.0 and 5.0 |
| Weight: | 20% |
| Length: | 10 minutes; 1,500 word equivalent |
| Criteria: |
|
Assessment task 3: Research Paper
| Intent: | This task is intended to assess students’ ability to research, critically analyse and evaluate issues in relation to the resolution of commercial disputes, and your ability to develop a clear and well-reasoned argument in writing in relation to the selected topic on dispute resolution. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: 3.0, 4.0 and 5.0 |
| Weight: | 60% |
| Length: | 3,500 Words |
| Criteria: |
|
Required texts
There are no prescribed texts.
A number of useful extracts from texts and journal articles will be made available through UTSOnline with links to the UTS Library.
Recommended texts
The following can be useful references.
Laurence Boulle and Rachael Field, Mediation: Principles, Process, Practice (LexisNexis, 4th ed, 2016)?
Mieke Brandon and Leigh Robertson, Conflict and Dispute Resolution: A guide for practice (Oxford University Press, 2007)?
John S Hammond, Ralph L Keeney and Howard Raiffa, Smart Choices: A Practical Guide to Making Better Decisions (Harvard Business School Press, 1999)?
Robert H Mnookin, Scott P Scott and Andrew S Tulumello, Beyond Winning: Negotiating to Create Value in Deals & Disputes (Harvard University Press, 2000)?
Robert H Mnookin and Lawrence Susskind (eds), Negotiating on Behalf of Others: Advice to Lawyers, Business Executives, Sports Agents, Diplomats, Politicians and Everybody Else (Sage Publications, 1999)?
Tania Sourdin, Alternative Dispute Resolution (Lawbook Co, 5th ed, 2016)?
Michael Watkins, Breakthrough Business Negotiation: A Toolbox for Managers (Jossey-Bass, 2002)
Dispute Resolution Journals:
Australasian Dispute Resolution Journal
Bond Law Review?
Negotiation Journal
Ohio State Journal on Dispute Resolution
Harvard Law Review?
Osgoode Hall Law Review
Students will also find helpful material in Arbitration and Business journals. Students should also consult Austlii for updated legislation referred to in the subject.
Useful Websites
