78029 Mediation Practice
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 78101c Postgraduate Legal Research) OR ((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) AND 79771c Dispute Resolution) OR 77885c Legal Process and 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 79771c 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): 78174 Mediation Practice
Description
Mediation has become the most popular facilitative process for the resolution of disputes, providing a real alternative to the adversarial system for many conflicts. With its focus on seeking a win-win solution, preserving and repairing relationships, and self-determination by the parties, mediation offers a flexible, less costly, faster and less stressful way to resolve disputes. The potential for mediation to support the overriding purpose of the courts to provide quick, cheap and just resolution of the real issues in dispute, and to relieve the burden of long waiting lists for access to judicial determination, has seen mediation grow in acceptance by the judiciary and the legislature in many Australian jurisdictions.
This mediation practice subject studies the philosophy, theory and practice of mediation as a dominant generic dispute resolution process. It considers the roles of all parties in the mediation process and the legal, ethical and normative framework in which the process is provided. Students learn about the selection criteria for mediation, both by private parties and by curial reference, and the institutionalisation of mediation by courts and public bodies. Also covered are the stages in the mediation process and the skills required for competent mediation practice.
This subject frames the roles of the participants, the mediation processes available and the trend toward institutionalisation in a skill-based and theory-informed block mode intensive subject. Through role-plays, exercises and interactive discussion, students critically analyse the legal, ethical and normative issues relating to mediation practice in Australia. In doing so, students further develop critical appraisal of the current debates surrounding training, accreditation and accountability of mediators.
This subject is taught in an interactive mode with an emphasis on the use of simulations and role plays to explore theory. The prime assessment is a research paper selected from a list of current issues and the secondary assessment is a case study presented in a seminar format. Students are also assessed on their reading and preparation and participation in workshops and discussions with daily written and oral reviews.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Apply the knowledge, skills and ethical principles of a mediator to assist disputants to make their own decisions in relation to disputes, conflicts or differences between them; |
|---|---|
| 2. | Identify, analyse and assess the neutral role of the mediator in supporting self-determination, facilitating communication and encouraging option generation; |
| 3. | Persuasively articulate an advanced and integrated understanding of the legal, ethical and normative issues that relate to mediation practice, including issues of confidentiality, power dynamics, procedural fairness and impartiality; |
| 4. | Understand and evaluate the different models of mediation and conduct intake assessments to assess suitability and determine the most appropriate model, including variations required by participants??? personal and cultural needs; |
| 5. | Effectively and persuasively communicate argument and theory both orally and in writing. |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes:
- Disciplinary Knowledge
An advanced and integrated understanding of a complex body of legal knowledge including:
A range of non-adversarial dispute resolution processes including commercial, family, community and court annexed processes; and
The broader contexts within non-adversarial dispute resolution processes operate and arise including consensual processes, decisional theory, regulatory, cultural, social justice, and ethical contexts. (1.0) - 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) - 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 is 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 intensive. These resources will also enable students to clarify concepts and terminology before the seminar day. Completing the preparation activities enables students to participate effectively in the activities detailed below.
Strategy 2
Engaging in Lectures and Seminars
Intensive block days involve a combination of lectures and interactive workshop sessions. In the lectures, students develop a thorough understanding of mediation concepts and methods. This prepares them to experiment with practical implementation of the theory in real-world scenarios through the role-play exercises. The lectures provide students with an in-depth understanding of mediation processes, as well as ethical issues that can arise in relation to mediation practice and consideration of cultural and other factors, confidentiality, power dynamics and communication styles. Students are encouraged to ask questions, clarify theoretical issues, explore new ideas and practise critiquing theories and literature during participatory lectures, class discussion and debriefing sessions. Students are also challenged to reflect on their own learned professional behaviours in the light of their new understanding of mediation as a facilitative practice.
Strategy 3
Role-plays, Exercises and Debriefs
Throughout the intensive block, students experience the practical aspects of mediation practice in simulated role-plays and in-depth case studies. Students build on the theoretical knowledge acquired through the subject materials, lectures and discussions to develop effective and appropriate mediation skills. Splitting into groups at various stages throughout the intensive block, students are given opportunities to actively practise elements of the mediation process involving both intake assessment, option generation, facilitated negotiation and documenting agreements. This enables students to gain a hands-on appreciation of the techniques, emotions and difficulties that can arise in a mediation process in a supportive, non-threatening environment. At the end of each day, students share and explore their experiences, gaining insight into the perspectives of those performing other roles in the process. This encourages greater awareness of the factors that can impact a mediation, provides them with feedback on their personal facilitative style and heightens their awareness of the issues that can interfere with successful mediation. Students are also encouraged to engage in reflective self-evaluation of their performance, enhancing their understanding of group dynamics between mediators and clients in a facilitative environment.
Strategy 4
Oral Presentations
Students present their research findings to their peers during the seminar day (following the intensive three-day block). 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. Students receive feedback from their peers and teachers on their knowledge of a subject area, their skills in analysing and evaluating complex problems and their ability to communicate their thoughts and relevant information in a clear, coherent and confident manner.
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 mediation skills through exploring various roleplay characters, receiving feedback and adjusting their approaches in the next mediation. 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
This 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 Thursday 6 April, Friday 7 April and Saturday 8 April and the seminar day on Thursday 8 June.
Attendance at all three (3) days of the intensive block and the final seminar day is compulsory to successfully complete the subject.
Content (topics)
- A short history of the evolution of mediation
- Generic facilitation mediation model:
- Managing initial contacts with the disputing parties
- Selecting a strategy to guide the mediation
- Roles and functions in mediation
- Skills and techniques of mediators:
- Conducting productive mediations
- Beginning the mediation session
- Defining the problem and setting the agenda
- Uncovering interests and exploring the issues
- Generating options and bargaining
- Formal agreement and settlement
- Mediation in practice
- Roles of parties and representatives
- Quality, standards and accountability in mediation
- Training and accreditation
- Legislative provisions and schemes
- Voluntary v mandatory mediation
- Enforceability of mediation clauses
- Confidentiality, privilege and ethical guidelines
- Liability and immunity
- Enforceability of settlement contracts
Assessment
Assessment task 1: Take Home Multiple Choice & Short Answer Exam
| Intent: | This assessment task is intended to assess students’ overall understanding of the topics covered during the intensive block and those prescribed by the National Mediation Standards Board. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
| Weight: | 15% |
| Length: | 1,000 word equivalent |
| Criteria: |
|
Assessment task 2: Seminar Presentation
| Intent: | This task provides an opportunity to develop oral advocacy skills and demonstrate an advanced and integrated knowledge of, and critical engagement with, mediation practice and theory. It 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, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
| Weight: | 30% |
| Length: | 1,500 word equivalent |
| Criteria: |
|
Assessment task 3: Research Paper
| Intent: | This task is intended to assess students’ research skills, ability to analyse and evaluate issues in relation to mediation practices and ability to develop a clear and well-reasoned argument in writing in relation to these issues. Students are expected to clearly communicate their understanding of the connection between theory and practice and the dynamics of mediation based on a sound knowledge of the facilitation model of mediation. This provides students with an opportunity to self-direct their learning by conducting an in-depth exploration into an element of mediation practice or theory of personal interest to them. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
| Weight: | 55% |
| Length: | 3,500 words |
| Criteria: |
|
Required texts
Mediation Practice Reading Materials will be available online.?
Ruth Charlton and Micheline Dewdney, The Mediator's Handbook: Skills and Strategies for Practitioners (Lawbook Co, 3rd ed, 2014)
Recommended texts
Laurence Boulle, Mediation: Principles, Process, Practice (Lexis Nexis Butterworths, 3rd ed, 2011)?
D Bowling and D Hoffman (eds), Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution (Jossey-Bass, 2003)
Kenneth Cloke, Mediating Dangerously: The Frontiers of Conflict Resolution (Jossey-Bass, 2001)
David Spencer and Samantha Hardy, Dispute Resolution in Australia: Cases, Commentary and Materials (Lawbook Co, 3rd ed, 2014)
Samantha Hardy and Olivia Rundle, Mediation for Lawyers (CCH Australia, 2010)
Christopher W Moore, The Mediation Process: Practical Strategies for Resolving Conflict (Jossey-Bass, 3rd ed, 2003)
Tania Sourdin, Alternative Dispute Resolution (Lawbook Co, 5th ed, 2016)
J.P. Lederach, The Moral Imagination: The Art and Soul of Building Peace (Oxford University Press, 2005)
Other resources
Australasian Dispute Resolution Journal
Bond Law Review?
Conflict Resolution Quarterly?
Harvard Law Review
Ohio State Journal on Dispute Resolution
Osgoode Hall Law Journal
Websites
