Australian dispute resolution : law and practice

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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