Australian dispute resolution : law and practice

Description

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