Course Outline. Code: LAW405 Title: Alternative Dispute Resolution

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1 Course Outline Code: LAW405 Title: Alternative Dispute Resolution USC Law School Teaching Session: Semester 1 Year: 2016 Course Coordinator: Professor Pamela O Connor Course Lecturers: Mr Ross McSwan and Ms Christine Jones Phone No: Ross McSwan Christine Jones rmcswan@usc.edu.au cjones8@usc.edu.au 1. What is this course about? 1.1 Course description This course will develop your knowledge and understanding of alternative dispute resolution as an integral part of the Australian legal system. You will gain an understanding of interpersonal conflict theory and the principles of nonadversarial dispute resolution. The course will enable you to assess the needs and interests of disputants and to identify and use the most appropriate ADR process to resolve a dispute. A number of non-adversarial processes will be examined, and you will have the opportunity to develop basic practical skills in negotiation and mediation. 1.2 Course content This course introduces you to the theory and practice of non-adversarial dispute resolution. Specific issues will include: An introduction to the theory of conflict and dispute resolution; customary approaches to dispute resolution; contemporary history of ADR. ADR as additional processes to litigation; integration of ADR into the Australian legal system; theory and principles of ADR processes. Role and responsibilities of ADR professionals Assessing disputant needs and interests Negotiation theory and practice Non-adversarial processes; Advisory and evaluative processes; Mediation theory and practice; Postadversarial approaches to Family Law; Restorative and therapeutic processes Identifying opportunities for early intervention and settlement of disputes Comparative advantages of ADR processes and litigation processes Ethical and legal issues in ADR Introduction to practical mediation skills

2 Page 2 2. Unit value 12 units 3. How does this course contribute to my learning Specific Learning Outcomes On successful completion of this course you should be able to: Assessment Tasks You will be assessed on the learning outcome in task/s: Qualities Completing these tasks successfully will contribute to you becoming: Demonstrate coherent and advanced understanding of the nature of conflict, conflict theory and the social contexts in which interpersonal disputes occur. Understand the differences between traditional adversarial and non-adversarial approaches to dispute resolution and be able to critically evaluate the advantages and disadvantages of each. Have the cognitive skills to demonstrate an advanced knowledge of, and be able to explain critically, the different processes of alternative dispute resolution in Australia including those that relate to neighborhood disputes, family law, workplace and industrial disputes, civil and consumer law. Demonstrate critical understanding of the theory of negotiation and negotiation strategies, and their application in resolving disputes. Evaluate and communicate the theory and practice of interpersonal dispute resolution and conflict management. 1, 2, 3 Creative and critical thinkers. 1, 2, 3 Creative and critical thinkers. 2 Creative and critical thinkers. 2, 3 Creative and critical thinkers. 1, 2, 3 Creative and critical thinkers.

3 Demonstrate the application of practical skills using initiative and judgement in complex interpersonal dispute resolution and conflict management. Page 3 3 Creative and critical thinkers. Be able to critically analyse each of the ADR processes taught and have the intellectual and practical skills to identify and evaluate the most appropriate process to be used to negotiate the resolution of a particular dispute. Understand and critically evaluate the role of ADR within the Australian legal system. Understand and critically evaluate the role of professionals in ADR processes and their duties and obligations. Demonstrate an advanced ability to exercise professional judgment in the context of lawyers in the ADR process Develop self-awareness and skills in critical analysis of personal responses to interpersonal conflict, and as a participant in an ADR process. Demonstrate an advanced ability to communicate effectively, coherently and persuasively in writing appropriate to the needs of the relevant audience. 2, 3 Creative and critical thinkers. 1, 2 Creative and critical thinkers. 2, 3 Creative and critical thinkers. Ethical. 2, 3 Creative and critical thinkers. Ethical. 2, 3 Creative and critical thinkers. Empowered. 3 Creative and critical thinkers.

4 Page 4 4. Am I eligible to enrol in this course? Refer to the Coursework Programs and Awards - Academic Policy for definitions of pre-requisites, co-requisites and anti-requisites 4.1 Enrolment restrictions This course is only available to students who are enrolled in a Bachelor of Laws program 4.2 Pre-requisites LAW Co-requisites Nil 4.4 Anti-requisites Nil 4.5 Specific assumed prior knowledge and skills (optional) Nil 5. How am I going to be assessed? 5.1 Grading scale Standard High Distinction (HD), Distinction (DN), Credit (CR), Pass (PS), Fail (FL) 5.2 Assessment tasks Task No. Assessment Tasks Individual or Group Weighting % What is the duration / length? When should I submit? Where should I submit it? 1 Optional online test Individual 0 30 minutes 2 Written assignment Individual 50% 3000 words Week 5 5pm Friday, Week 11 BlackBoard SafeAssign 3 Mediation Analysis and Plan Individual 50% 2500 words 5pm Friday, Week 13 Hard copy to USC Law School 100%

5 Page 5 Assessment Task 1: Optional online test Goal: To test your understanding of key concepts and principles covered in weeks 1-4 of the course Product: Format: An optional test Short answer questions Criteria You will be assessed on your understanding of the principles and concepts covered in Weeks 1 4 Generic skill assessed Problem solving Communication Skill assessment level Assessment Task 2: Written Assignment Goal: Product: Format: Criteria To demonstrate your critical understanding of the role of ADR within the Australian legal system, and the role of professionals in negotiating outcomes for disputants in ADR processes. Written assignment This is a 3000 word individual assignment. You will be assessed on your: - knowledge and understanding of the course materials and readings for Weeks capacity for critical thinking - analysis and argument - structure and writing Generic skill assessed Organisation Problem solving Information literacy Skill assessment level Assessment Task 3: Mediation Analysis and Plan Goal: Product: To plan for and take part in a mediation role-play and to reflect on your skills in that mediation. Written plan and reflective commentary.

6 Page 6 Format: This is a 2500 word individual assignment. Working collaboratively with another student, you will play the role of mediator in a fictional dispute. In the mediation role play, other students will be play the role of disputing parties. 1. Mediation Plan You are required to write a plan for the mediation. Your plan should demonstrate the following: knowledge of the philosophy and the process of mediation an understanding of the role of the mediator and the practices of effective mediators Your plan should also provide evidence that you have considered the learning and knowledge contained in the course materials, readings and from other sources in developing your plan. Describe any matters which you consider must be discussed with the parties prior to the mediation. Describe any risk management issues arising for the mediator or other professional relating to the mediation. (Word limit 1500 words). 2. Following the role play mediation to be observed by your lecturer, you will complete and submit a written self-assessment, making reference to the specific skills which you used and reflecting on what you could have done to be more effective in your mediation role. (Word limit 1000 words). Criteria You will be assessed on your: - knowledge and understanding of your role as mediator - ability to demonstrate basic mediation skills taught in Weeks ability to exercise professional judgment to generate an appropriate response to a problem scenario - capacity to communicate effectively, appropriately and persuasively. Generic skill assessed Organisation Problem solving Communication Skill assessment level 5.3 Additional assessment requirements Safe Assign In order to minimise incidents of plagiarism and collusion, this course may require that some of its assessment tasks are submitted electronically via Safe Assign. This software allows for text comparisons to be made between your submitted assessment item and all other work that Safe Assign has access to. If required, details of how to submit via Safe Assign will be provided on the Blackboard site of the course. Eligibility for Supplementary Assessment Your eligibility for supplementary assessment in a course is dependent of the following conditions applying: a) The final mark is in the percentage range 47% to 49.4% b) The course is graded using the Standard Grading scale c) You have not failed an assessment task in the course due to academic misconduct

7 Page Submission penalties Late submission of assessment tasks will be penalised at the following maximum rate: 5% (of the assessment task s identified value) per day for the first two days from the date identified as the due date for the assessment task. 10% (of the assessment task s identified value) for the third day 20% (of the assessment task s identified value) for the fourth day and subsequent days up to and including seven days from the date identified as the due date for the assessment task. A result of zero is awarded for an assessment task submitted after seven days from the date identified as the due date for the assessment task. Weekdays and weekends are included in the calculation of days late. To request an extension you must contact your course coordinator to negotiate an outcome. 6. How is the course offered? 6.1 Directed study hours Weeks 1-10 Lecture: 2 hours per week Tutorial: 1 hour per week Weeks hour workshop Attendance during the weeks of practical skills instruction (i.e. in weeks 3, 4, 9, 11, 12, 13) is compulsory because experiential learning is essential for the skills development of students, and is a course outcome. Furthermore, non-attendance by any student at these tutorials/workshops disadvantages the other students in the class. Students are required to attend unless prior permission has been granted by the Course Coordinator. If a student cannot attend, or doubts their ability to be present during those seminar times, then they should not to enrol in the course. 6.2 Teaching semester/session(s) offered Semester Course activities Teaching Week / Module What key concepts/content will I learn? What activities will I engage in to learn the concepts/content? Directed Study Activities Independent Study Activities 1 Introduction to course Introduction to conflict theory Customary dispute resolution processes Contemporary history of ADR in Australia Lecture Sourdin Ch 1,4,9 &15 Dispute and Conflict Resolution King et al, Non-adversarial Justice Introduction, Ch 7

8 Page 8 1 Supplementation of customary ADR processes Tutorial Walker, Polly (1999) "Concepts of the self: implications for crosscultural conflict resolution," ADR Bulletin: Vol. 2: No. 2, Article 2. Bernhardt, L Aboriginal Dispute Resolution Federation Press, 1995 Exploring culturally appropriate dispute resolution for Aboriginal and Torres Strait Islander peoples Vic Aboriginal Legal Service 2 Principles of ADR, ADR as additional dispute resolution mechanisms to litigation Roles and responsibilities of professionals in ADR 2 Effective client/lawyer communication, assessing disputant needs and interests, conflict coaching Lecture Sourdin Ch 1,6,8,9,12,14 King et al, Non-adversarial Justice Tutorial Sourdin Ch 2,3,4,5& 14 Brandon & Robertson Ch 7 3 Negotiation Theory and Practice Lecture Sourdin Ch 1 & 2 Brandon & Robertson Ch 9 Crump, L & Giddings, J Strategy, choice and the skilled legal negotiator, (2005) Monash University Law Review 31(2) 3 Practical negotiation exercise Tutorial Sourdin Ch 1 & 2 Brandon & Robertson Ch 9 Crump, L & Giddings, 4 Negotiation Theory and Practice Lecture Sourdin Ch 1, 2 &14 Brandon & Robertson Ch 9 4 Practical negotiation exercise Tutorial Sourdin Ch 1 & 2 Brandon & Robertson Ch 9

9 Page 9 5 Mediation Theory and Practice Lecture Sourdin Ch 7 Brandon & Robertson Ch 4,5,7,8,9,11 &12 5 Mediation Theory and Practice Tutorial Sourdin Ch 7 Brandon & Robertson Ch 4,5,7,8,9,11 &12 6 Post adversarial approaches to Family Law Lecture Sourdin Ch 8 King et al Introduction and Ch 5,7,8, 6 The Role of the Legal Profession. Analysis of article and discussion: Ardargh A, Repositioning the Legal Profession in ADR Services: The Place Of Collaborative Law In The New Family Law System In Australia, (2008) 8 QUTLJ 238. Tutorial Sourdin Ch 7 &11 Brandon & Robertson Ch 9 7 Restorative and Therapeutic Processes Lecture King et al Ch 2 & 3 7 Discussion: Moore: Common Elements of Restorative Justice practices. The Value and Application of Restorative Justice Principles (Justice Bites Loddon Campaspe Community Legal Centre and Central Victorian Tutorial King et al Ch 2 & 3 8 Advisory or Evaluative Processes Lecture Sourdin Ch 6,7 & 8 8 Comparative mediation processes, judicial ADR, problem solving courts Tutorial Sourdin Ch 6,7 & 8 King et al Ch 9,10,11 and 13 9 ADR Intervention when and how? Lecture Sourdin Ch 2,4,6,& 8 9 Practical exercise: dispute scenario client interview, compilation of checklist for client file. Tutorial Sourdin Ch 2,4,6,& 8 10 Ethical and legal issues in ADR Lecture Sourdin Ch 5,6 & 14

10 Page Ethical and legal issues. Case analysis and discussion. Pihiga Pty Ltd v Roche [2011] FCA 240; Limbury AL, Should Mediation be an Evidentiary Black Hole? (2012) 35 UNSWLJ 914 and Sourdin T, Confessions Confessions mediator obligations when someone fesses up (2005) Vol 7 No 6 ADR Bulletin Article 2 Tutorial Sourdin Ch 5,6 & 14 Pihiga Pty Ltd v Roche [2011] FCA Mediation Skills - Skills building, role play, demonstration, direct coaching and feedback Workshop Brandon & Robertson Ch 4,5,7,8,9,11 &12 12 Mediation Skills - Skills building, role play, demonstration, direct coaching and feedback Workshop Brandon & Robertson Ch 4,5,7,8,9,11 &12 13 Mediation Skills - Skills building, role play, demonstration, direct coaching and feedback Workshop Brandon & Robertson Ch 9 Study Period Central Examination Period End of Semester Break Please note that the course activities may be subject to variation. 7. What resources do I need to undertake this course? 7.1 Prescribed text(s) Please note that you need to have regular access to the resource(s) listed below: Author Year Title Publisher Sourdin T 2015 Alternative Dispute Resolution 5 th ed Lawbook Co., Thomson Reuters Australia 7.2 Required and recommended readings The following books are recommended to read to broaden your base of knowledge: Boulle, L, Mediation: Principles, Process, Practice, (3 rd ed), Lexis Nexis Butterworths, 2009 Brandon, M & Robertson, L, Conflict and Dispute Resolution: A Guide for Practice, Oxford, South Melbourne, 2007 King M, Freiberg A, Batagol B & Hyams R, Non-Adversarial Justice (2 nd ed) The Federation Press, 2014 Moore, C W, The Mediation Process: Practical Strategies for Resolving Conflict, (3 rd ed), Jossey-Bass, San Francisco, 2003 Spencer D, & Hardy S, Dispute Resolution in Australia (3 rd ed) Sydney, NSW: Lawbook Co Spencer D, Principles of Dispute Resolution (1st rd ed) Sydney, NSW: Lawbook Co. 2011

11 Page 11 Lists of any further required and recommended readings may be found for this course on its Blackboard site. These materials/readings will assist you in preparing for tutorials and assignments, and will provide further information regarding particular aspects of your course. 7.3 Specific requirements Nil 7.4 Risk management There is minimal health and safety risk in this course. It is your responsibility to familiarise yourself with the Health and Safety policies and procedures applicable within campus areas. 8. How can I obtain help with my studies? In the first instance you should contact your tutor, then the Course Coordinator. Student Life and Learning provides additional assistance to all students through Peer Advisors and Academic Skills Advisors. You can drop in or book an appointment. To book: Tel: or StudentLifeandLearning@usc.edu.au 9. Links to relevant University policies and procedures For more information on Academic Learning & Teaching categories including: Assessment: Courses and Coursework Programs Review of Assessment and Final Grades Supplementary Assessment Administration of Central Examinations Deferred Examinations Student Academic Misconduct Students with a Disability Faculty specific information General enquiries Student Central - Building C Tel: Fax: Studentcentral@usc.edu.au Assignment Cover Sheets The USC assignment cover sheet can be found on the USC Portal (Blackboard) at: USC Law School (Students) > Forms. It must be completed in full identifying student name, assignment title, tutor and tutorial time. This must be attached securely to the front of each assessment item prior to submission. Claims of loss of assignments will not be considered unless supported by a receipt. Hard Copy Submission to USC Law School There is a USC Law School Assignment Submission box in the foyer on the ground floor of J building, in front of the USC Law School. Please note that the foyer is under 24-hour CCTV surveillance. SafeAssign Submission If your course requests SafeAssign submission, there will be an electronic assessment submission area on Blackboard under Assessment. You will need to agree to the Submission Declaration before you are able to see the submission area.