78173 Dispute Resolution in Civil Practice
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Credit points: 6 cp
Result type: Grade and marks
Requisite(s): (79771 Dispute Resolution AND 78101c Postgraduate Legal Research) OR ((22 credit points of completed study in spk(s): C07122 Graduate Diploma Legal Studies 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) AND 79771 Dispute Resolution) OR (70107c Principles of Company Law AND 79771 Dispute Resolution AND (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) 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): 78172 Dispute Resolution in Civil Practice
Description
Civil disputes come in many different forms, from arguments between neighbours to personal injury and negligence to contractual issues to tenancy problems to appeals from administrative decisions to petitions for equitable relief, to name just a few. To assist the overburdened courts in achieving the overriding purpose of Australian civil justice – the just, quick and cheap resolution of the real issues in dispute – a range of alternative processes have arisen.
This subject focuses on the role of commissions and tribunals in providing access to justice in tandem with the traditional adversarial system of litigation. Conciliation, 'concilio-arb', arbitration and other hybrid processes as well as mediation, particularly in the context of the civil justice system are investigated. The impact of dispute resolution on the formal adversarial system is assessed and the interface of the informal and formal systems is examined. The subject also considers the effect of the formal systems on the less formal dispute resolution processes.
Students study state and federal processes as well as developments internationally. They investigate the theory and practice of civil dispute resolution and learn practical skills to assist in preparing and guiding clients through these processes. Through interactive lectures, videos, discussions and presentations by expert guest lecturers, these developments are studied in the context of changing legal culture and the demand for alternatives that provide effective, accessible, cost efficient and ethical methods for dealing with civil disputes. Students further develop their disciplinary knowledge and communication skills through a research paper and a seminar presentation on a selected topic in civil 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 processes and articulate their relevance to the resolution of different categories of civil disputes; |
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| 2. | Understand the professional responsibilities and duties involved in taking on a new advocacy role in a civil dispute resolution process; |
| 3. | Critically analyse and distinguish from the adversarial civil justice system alternative dispute resolution fora, such as tribunals and commissions; |
| 4. | Identify and synthesise primary and secondary legal and interdisciplinary texts in order to investigate the relationship between law and dispute resolution in relation to civil justice; |
| 5. | Construct and effectively articulate critical, justifiable, persuasive and well-reasoned scholarly arguments, 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 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, classes. 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 practice 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
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. Guest lectures by current practitioners also provide students with the opportunity to evaluate and develop important skills and concepts related to dispute resolution reform and to understand the perspectives of key stakeholders. Students will meet with practitioners and have opportunities for dialogue on contemporary professional and advocacy issues arising out of their preparation. Peers and experts throughout the discussions provide immediate formative feedback.
Strategy 3
Oral Presentations and Feedback
Seminars involve students individually presenting on designated topics. Students receive feedback from peers and teachers 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.
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 Thursday 30 March, Friday 31 March, Saturday 1 April and the seminar day on Saturday 20 May.
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)
- Introduction to Civil Justice system
- National principles for resolving civil disputes
- State and Federal Tribunals and Commissions
- Processes for resolving civil disputes
- State and Federal Tribunals and Commissions
- The emerging mega-tribunal and its place in the civil justice system
- The role of the conciliator
- New advocacy roles of lawyers in Dispute Resolution processes
- Court-connected processes in NSW and the Federal Court
- Statutory Provisions for processes in Courts and tribunals
- Community Justice Centres
- Programs in other states and overseas
- Impact of dispute resolution on the adversarial system and legal culture
- Impact of the adversarial culture on Dispute Resolution processes
Assessment
Assessment task 1: Writing a Submission
| Intent: | This assessment task is intended to assess students’ ability to critically analyse the material presented and communicate their knowledge and thinking coherently in the form of a submission to an Inquiry on a current civil justice issue. |
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| 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: | 20% |
| Length: | 1,500 words |
| Criteria: |
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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 civil 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. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
| Weight: | 20% |
| Length: | 10 minutes; 1,500 word equivalent |
| Criteria: |
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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 civil disputes, and your ability to develop a clear and well-reasoned argument in writing in relation to the selected topic on dispute resolution. |
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| 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: | 60% |
| Length: | 3,500 words |
| Criteria: |
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Required texts
There are no prescribed texts.
Reading materials will be posted on UTSOnline.
Recommended texts
Hardy, S & Rundle, O Mediation for Lawyers CCH Australia Ltd 2010
Hemming, Andrew and Penovic, Tania Civil Procedure in Australia Lexis Nexis 2015
Sourdin, T Alternative Dispute Resolution 4th Edition Lawbook Co 2012 Chapter 8
Spencer, D & Hardy, S Dispute Resolution in Australia. Cases, Commentary and Materials 2nd Edition Lawbook Co 2009 Chapters 4, 8, 9 and 13
References
Abramson, H I Mediation Representation: Advocating in a Problem-Solving Process 2004 The National Institute for Trial Advocacy
Sourdin, T & Zariski, A The Multi-Tasking Judge: Comparative Judicial Dispute Resolution Lawbook Co 2013
Other resources
‘A Strategic Framework for Access to Justice in the Federal Justice System’ September 2009 Report by the Access to Justice Taskforce Attorney-General’s Department. www.ag.gov.au
'The Resolve to Resolve - embracing ADR to Improve Access to Justice in the Federal Jurisdiction.' report to the Attorney-General September 2009. Available NADRAC www.nadrac.gov.au
Civil Dispute Resolution Bill 2010 www.austlii.com.au
Civil Dispute Resolution Bill Explanatory Memoranda www.austlii.com.au
Civil Justice Quarterly Marquette Law Review
Australasian Dispute Resolution Journal Bond Law Review
