✍ Scribed by Rachel Field
No coin nor oath required. For personal study only.
Full Title
Copyright
Preface
Table of Cases
Table of Statutes
Table of Contents
Part I Dispute Resolution in Australia
Chapter 1 Dispute Resolution and Lawyering
Chapter contents
Introduction
The legal profession
The nature of legal work and DR
Lawyering, DR expertise and upholding the rule of law
The challenges of change for the legal profession
DR as a response to the challenges facing the legal profession
Legal education and DR: Preparing lawyers of the future
Legal education, the ‘Priestley 11’ and DR
DR and the threshold learning outcomes
TLO 1: Knowledge
TLO 2: Ethics and professional responsibility
TLO 3: Thinking skills
TLO 4: Research skills
TLO 5: Communication and collaboration
TLO 6: Self-management
Conclusion
Chapter 2 Understanding Conflict and Disputes
Chapter contents
Introduction
The terminology and elements of conflict and disputes
The terms ‘conflict’ and ‘dispute’
The participants in conflict and disputes
The intervenors
DR process outcomes
Understanding conflict and disputes: additional important terms and conceptual elements
The complex nature of conflict and disputes
Understanding the complex dimensions of conflict and disputes
Positions and interests in disputes
Cognitive and social biases in conflict
Escalation and de-escalation of conflict and disputes
Power, conflict and disputes
Dispute diagnosis and choice of intervention
Dispute diagnosis
Identifying the issues in dispute
Managing conflict and disputes constructively
Effective conflict and dispute management
Adversarial and non-adversarial approaches to managing conflict
DR practitioner functions in effective conflict management
Lawyers, lawyering, conflict and disputes
Transactional lawyering
Lawyers and dispute resolution processes
Conclusion
Chapter 3 The Dispute Resolution (DR) Matrix
Chapter contents
Introduction
What was alternative dispute resolution (ADR)? What is DR?
DR spectrums, pyramids, and trees
A DR matrix
The three descriptive elements of the DR matrix
The category of DR processes
The roles and functions of third-party intervenors
The purpose of DR processes
The Australian DR matrix
Conclusion
Chapter 4 The Dispute Resolution (DR) Processes on the DR Matrix
Chapter contents
Introduction
Unassisted approaches to DR
Self-help activities
Unassisted (direct) negotiations
Assisted (partisan) DR processes
Assisted negotiation
Collaborative practice
Conflict coaching
Partnering and alliancing
Counselling and related assistance
Facilitated (non-partisan) DR processes
Facilitative mediation
Facilitation
Conferencing
Family dispute resolution (FDR)
Counselling
Good offices and brokering
Advisory DR processes
Conciliation
Expert appraisal, neutral evaluation, case appraisal
Fact-finding
Ombud institutions
Determinative DR processes
Arbitration
Expert determination
Adjudication
Refereeing
Dispute review boards
Litigation
Transformative DR processes
Counselling and therapy
Conflict coaching
Transformative mediation
Therapeutic mediation
Blended DR processes
Conclusion
Chapter 5 Values and Goals in Dispute Resolution
Chapter contents
Introduction
Understanding values and goals
A philosophical framework for DR values and goals: Democracy and the rule of law
The core values of contemporary Australian DR: Justice, party autonomy and community
Justice as a value of DR
The ‘first-class’, ‘second-class’ justice debate
The DR values framework: Justice as fairness
Fairness in DR — the goal of procedural justice
Fairness in DR — the goal of substantive justice
Fairness, justice and informed consent
Fairness in DR — the goal of ethical intervention
The DR value of party autonomy
Understanding the value of autonomy in DR through SDT
Achieving the value of autonomy in DR — the goal of party participation
Achieving the value of autonomy in DR — the goal of party self-determination
The DR value of community
The value of community — access to justice in a civil society
Achieving access to justice through DR
Achieving access to justice through DR: Affordable DR
Achieving access to justice through DR: Timely DR
Achieving access to justice through DR: DR that empowers the vulnerable
Conclusion
Chapter 6 A Short History of Dispute Resolution in Australia
Chapter contents
Introduction
Indigenous DR in Australia
Influences on the development of Australian DR
Community-based DR
Australian developments in community-based DR
DR and civil justice reform in Australia
Australian developments in civil justice system reform
Institutionalisation of DR through the courts
Institutionalisation of DR through tribunals and ombuds
The people and organisations of non-adversarial DR in Australia
NADRAC and ADRAC
The Resolution Institute
The Bond University Centre for Dispute Resolution
Australian Disputes Centre (ADC)
Shaping the future of DR in Australia
Conclusion
Part II Key Dispute Resolution Systems: Theory, Practice and Variations
Chapter 7 Negotiation
Chapter contents
Introduction
Negotiation as a DR and transactional process and skill
Definition and purposes of negotiation
The diverse dimensions of negotiation
Models and styles of negotiation
The elements of DR negotiation
Nature and motivation
Negotiation impacts
Participants
Negotiation preparation
Negotiation procedure
Negotiation scope and content
Negotiation outcomes and effectiveness
Transactional negotiation
Negotiation ethics
Conclusion
Chapter 8 Mediation
Chapter contents
Introduction
Understanding mediation
Party autonomy, party self-determination, participation
Mediation models
Facilitative mediation
Advisory and evaluative mediation
Transformative mediation
Practice contexts for the models
Mediation process and practice
Mediator’s opening statement
Initial statements by the parties
Agenda setting
Discussion and exploration
Generating options, bargaining and problem-solving
Separate sessions
Final decision-making, recording and closure
Preliminary mediation activities
Mediator selection and appointment
Organisational preparation
The role of lawyers, advisers and support people
Agreement to Mediate
Post-mediation activities
Variations in process and procedure
Joint sessions or separate sessions
Shuttle mediation
Electronic, online and telephonic/text approaches
Adjournments, suspension and termination
Mediator functions and capabilities
Applications of mediation
Commercial disputes
Building and construction disputes
Community disputes
Family disputes
Industrial, employment and workplace matters
Native title claims
Farm debt disputes
International commercial disputes
Contentious issues in mediation
When is mediation appropriate?
Mediator power
Lawyers in mediation
Conclusion
Chapter 9 Conciliation
Chapter contents
Introduction
Understanding conciliation
Distinguishing conciliation from mediation
The values and goals of conciliation
Conciliation procedures
Blended conciliation processes
Applications of conciliation
Industrial and workplace applications
Conciliation in family law
Anti-discrimination conciliation
Critical issues in conciliation practice
Lawyers and conciliation
Conclusion
Chapter 10 Expert Determination and Arbitration
Chapter contents
Introduction
Underlying values and attributes
Expert determination
Features and procedures
Distinguishing expert determination from arbitration
Procedural fairness
Courts and compliance
Enforceability
Applications of expert determination
Arbitration
Defining arbitration and identifying its attributes
Procedure
Enforceability and the courts
Applications of arbitration
International determination systems
International commercial arbitration
Arbitration in investment and trade disputes
Arbitration in international consumer disputes
Blended processes involving arbitration
Med-arb, med-arb-med and arb-med
Arb-med-arb
Lawyer involvement in arbitration
Conclusion
Chapter 11 Litigation
Chapter contents
Introduction
Values and goals of litigation
Litigation in Australian domestic law
Traditional common law litigation
Critiques of common law litigation
Alternative approaches in litigation
Case management
Pre-litigation requirements
‘ADR’ in court-based litigation
Operational factors
Pre-appeal dispute resolution
The multi-door courthouse
Court-aligned DR in perspective
Judicial dispute resolution
Constitutional considerations
Compatibility arguments
Performance-based questions
Accountability considerations
Non-adversarial justice in the courts
Evaluation
International litigation and adjudication systems
International Court of Justice
Other international adjudication
The future of litigation — online courts
Lawyers and litigation
Conclusion
Part III Dispute Resolution Praxis and Potential
Chapter 12 Elements of Effective Dispute Resolution Practice
Chapter contents
Introduction
Praxis in DR
The importance of critical perspectives to DR praxis
Advocacy and DR praxis
The adversarial advocacy hat
The non-adversarial advocacy hat
A new culture of legal advocacy in DR
Summary
Informed consent in DR
The meaning of informed consent in DR
An approach to achieving informed consent in DR
Informed consent and maximising party control
Informed consent and ethical activism by intervenors
Summary
The shadow of the law in DR
Operationalising the shadow of the law: avoiding overstating the role of the law
Operationalising the shadow of the law: acknowledging the uncertainty of the law
Summary
Reflective DR practice
Reflective practice supports emotional intelligence in DR praxis
Reflective practice supports the development of a professional identity
Conclusion
Chapter 13 Competence and Ethics in Dispute Resolution
Chapter contents
Introduction
Competence in DR
Substantive knowledge
Determinative processes
Advisory processes
Facilitative processes
Blended processes
Procedural knowledge and skills
Determinative processes
Advisory processes
Facilitative processes
Recognition, training and accreditation
The National Mediator Accreditation System (NMAS)
The Family Dispute Resolution (FDR) system
Conciliation processes
Some new DR competencies
Emotion and dispute resolution
Psychology, neurobiology and DR
Summary
Ethics and DR
Ethical rules for lawyers representing clients in DR
Rules of ethical conduct for Australian solicitors
Rules of ethical conduct for Australian barristers
A case on point: Legal Services Commissioner v Mullins
Summary
Ethical rules for lawyers as intervenors in DR processes
Ethics for judges
Ethics for arbitrators
Ethics for conciliators
Ethics for mediators
Confidentiality in mediation
Consequences of breaching ethical rules in DR contexts
A moral compass in DR processes
Using a moral compass in DR
Future ethical DR paradigm
Conclusion
Chapter 14 Dispute Resolution and a Positive Professional Identity
Chapter contents
Introduction
Understanding a positive professional identity
Conceptualising a positive professional identity based on DR
A professional ideology for DR practice
Fidelity to the ‘good’ of dispute resolution
A public DR ‘office’
Fitness for practice
The comprehensive law movement: putting the ideology for a positive professional identity for lawyers through DR into practice
Collaborative law
Creative problem-solving
Holistic justice
Preventative law
Problem-solving courts
Procedural justice
Restorative justice
Therapeutic jurisprudence
Transformative mediation
Summary
Why a positive professional identity is important
Professional identity and Self-Determination Theory (SDT)
PERMA, DR practice and professional identity
Positive emotion (P)
Engagement (E)
Positive Relationships (R)
Meaning (M)
Accomplishment (A)
Summary
Positive professional identity formation through DR
Conclusion
Index
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