Australian dispute resolution : law and practice

✍ Scribed by Laurence Boulle; Rachael Field

• Publisher: LexisNexis Butterworths
• Year: 2017
• Tongue: English
• Leaves: 823
• Edition: 1
• Category: Library

✦ Table of Contents

Full Title
Copyright
Preface
Table of Cases
Table of Statutes
Table of Contents
PART I: THE DISPUTE RESOLUTION PANORAMA
Chapter 1: Lawyers, Lawyering and Dispute Resolution
Chapter contents
Introduction
The profession of law
DR and the nature of legal work
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
Conclusion
Chapter 2: The Dispute Resolution Matrix
Chapter contents
Introduction
What was alternative dispute resolution (ADR)? What is DR?
Spectrums, pyramids, trees and a matrix
DR typologies
Typology 1: DR process focus
Prevention-focussed DR processes
Interests-focussed DR processes
Rights-focussed DR processes
Power-focussed DR processes
Illustrating typology 1
Typology 2: Independent interveners’ roles and functions
An Australian DR matrix
Self-help approaches
Processes without impartial intervention
Negotiation
Collaborative practice
Conflict coaching
Partnering and alliancing
Facilitated DR processes
Mediation
Facilitation
Conferencing
Family dispute resolution (FDR)
Counselling
Good offices and brokering
Advisory DR processes
Conciliation
Expert appraisal, case appraisal and neutral evaluation
Fact-finding
Determinative DR processes
Arbitration
Expert determination
Adjudication
Refereeing
Dispute review boards
Litigation
Transformative DR processes
Therapy
Conflict coaching
Transformative mediation
Blended DR processes
Med-arb
Arb-med
Arb-med-arb
Other blended processes
Conclusion
Chapter 3: Shaping Australian Dispute Resolution
Chapter contents
Introduction
Indigenous DR in Australia
Influences on the shaping of DR in Australia
The shaping of community-based DR
Australian developments in community-based DR
The shaping of DR through civil justice reform
Australian developments in civil justice system reform
Institutionalisation of DR through the courts
Institutionalisation of DR through tribunals and ombuds
Tribunals
Ombuds
The people and organisations of DR in Australia
NADRAC and the Australian Dispute Resolution Advisory Council
The Resolution Institute
The Bond Dispute Resolution Centre
Australian Disputes Centre (ADC)
Shaping the future of DR in Australia
Conclusion
Chapter 4: 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 values of contemporary Australian DR: Justice, party autonomy and community
Justice as a DR value
Justice as fairness
Fairness in DR – the goal of procedural justice
Fairness in DR – the goal of substantive justice
Procedural and substantive justice and informed consent
Fairness in DR – the goal of impartiality
The DR value of party autonomy
The DR value of community
Access to justice in a civil society
Access to justice through DR
The important role of lawyers
Conclusion
Chapter 5: Conflict and Disputes as Lawyers’ Business
Chapter contents
Introduction
Elements in the conflict crucible
Conflict and disputes
The participants in conflicts and disputes
The interveners
DR process outcomes
Other conceptual elements
Nature, causes and diagnosis of conflict and disputes
Categories of conflicts and disputes
The nature and dimensions of conflicts and disputes
Cognitive and social biases in conflict
Positions and interests in conflict situations
Dispute diagnosis and interventions
Escalation and de-escalation of conflicts and disputes
Appropriate defining of disputes
Adversarial and non-adversarial approaches to managing conflict
Managing conflicts constructively
Effectiveness in conflict management and dispute resolution
Practitioner functions in conflict management
Power in dispute resolution
Law and lawyers in the business of conflict and disputes
Transactional lawyering
Dispute resolution lawyering
Conflict escalation and the law
Lawyers and dispute resolution processes
Lawyers and regulation in dispute resolution
Conclusion
PART II: DISPUTE RESOLUTION SYSTEMS
Chapter 6: Processes Without Independent Interveners
Chapter contents
Introduction
Party self-help
Assisting self-help parties
Institutional assistance
Lawyer assistance
Conflict coaching
Counselling and related assistance
Negotiation
Definition and purposes
Normative dimensions of negotiation
Models and styles of negotiation
Transactional negotiation
DR negotiation
Nature and motivation
Participants
Negotiation procedure
Negotiation scope and content
Negotiation outcomes and effectiveness
Negotiation impacts
Negotiation preparation
Synthesis
Regulating negotiation conduct and ethics
Collaborative practice
Alliancing and partnering
Lawyers and DR without independent interveners
Conclusion
Chapter 7: Facilitated Dispute Resolution Processes
Chapter contents
Introduction
Facilitation
Mediation
Definition and description
Mediation values
Mediation models
Settlement mediation
Facilitative mediation
Transformative or therapeutic mediation
Evaluative or advisory mediation
Synthesis
Mediation structure and procedure
Mediator’s opening
Party initial statements
Problem definition and agenda
Discussion and exploration
Generating options, bargaining and problem-solving
Final decision-making, recording and closure
Preliminary mediation activities
Mediator selection and appointment
Organisational preparation
The role of lawyers
Agreement to Mediate
Post-mediation activities
Variations in structure and procedure
Joint sessions
Separate sessions
Shuttle mediation
Electronic, online and telephonic communication
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
Critical issues in mediation
Conciliation
Other facilitative-advisory processes
Lawyers in facilitated processes
Conclusion
Chapter 8: Advisory and Evaluative Dispute Resolution Processes
Chapter contents
Introduction
Conciliation
Definitional distinctions between conciliation and mediation
The values and goals of conciliation
Conciliation procedures
Applications of conciliation
Industrial and workplace applications
Conciliation in family law
Anti-discrimination conciliation
Blended conciliation processes
Issues in conciliation practice
Expert appraisal, neutral evaluation, case appraisal
Evaluation and appraisal procedures
Issues in evaluation and appraisal
Ombud institutions
Lawyers and the advisory processes
Conclusion
Chapter 9: Determinative Dispute Resolution Processes
Chapter contents
Introduction
Underlying values and attributes
Adjudication
Expert determination
Features and procedures
Distinguishing expert determination from arbitration
Procedural fairness
Courts and compliance
Enforceability
Applications of expert determination
Arbitration
Definition and attributes
Procedure
Enforceability and the courts
Applications
International determination systems
International commercial arbitration
Arbitration in investment and trade disputes
Arbitration in international consumer disputes
Quasi-determinative processes
Referees
Assessors
Med-arb
Arb-med-arb
Other quasi-determinative processes
Lawyer involvement in determinative processes
Conclusion
Chapter 10: Litigation
Chapter contents
Introduction
Values and goals of litigation
Litigation in Australian domestic law
Traditional common law litigation
Critiques of common law litigation
Alternative litigation systems
Case managing litigation
Pre-litigation requirements
‘ADR’ in court-based litigation
Organisational 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 systems
International court of justice
Other international adjudication
The future of litigation – online courts
Lawyers, courts and litigation
Conclusion
PART III: DISPUTE RESOLUTION PRAXIS AND POTENTIAL
Chapter 11: Practice and Theory: The Interface
Chapter contents
Introduction
DR Praxis
The importance of an evaluative approach to DR
Putting theory into practice
Praxis and DR advocacy
The adversarial advocacy hat
The non-adversarial advocacy hat
A new legal culture of advocacy
Summary
Praxis and informed consent in NLDR
The meaning of informed consent in NLDR systems
A framework for achieving informed consent in NLDR
Summary
Praxis and the shadow of the law
Overstating the role of the law
Uncertainty of the law
Summary
Praxis and reflective DR practice
Reflective practice supports emotional intelligence in DR
Reflective practice supports the development of a professional identity
Conclusion
Chapter 12: 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
The new DR competencies
Emotion and dispute resolution
Psychology, neuro-biology and DR
Competencies for ‘new lawyers’
Extending the traditional legal competencies
Adding to the lawyer’s toolbox
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 interveners in DR processes
Ethics for judges
Ethics for lawyer arbitrators
Ethics for lawyers as conciliators
Ethics for lawyer mediators
Consequences of breaching ethical rules in DR contexts
A moral compass for lawyers in DR processes
Using a moral compass for ethical DR lawyering
Future ethical NLDR paradigm
Teaching ethics for DR contexts at law school
Conclusion
Chapter 13: Dispute Resolution, Law and a Positive Professional Identity
Chapter contents
Introduction
Understanding a positive professional identity
Conceptualising a positive professional identity for lawyers based on DR
A professional ideology for DR practice in law
Fidelity to the ‘good’ of dispute resolution
A public DR ‘office’
Fitness for practice
Summary
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
The development of a positive professional identity at law school
Conclusion
Index