Dispute Management

Half title
Acknowledgement of Country
Title page
Imprints page
Dedication
Foreword
Contents
About the authors
Table of cases
Table of statutes
Acknowledgements
Introduction
1 Understanding disputes
	Learning aims
	Understanding disputes
		A dispute as opposed to conflict
		Components of a dispute and the dispute cycle
		Identifying parties to a dispute
	Classification of dispute management approaches
		Monadic dispute management
		Dyadic (two-party) management
		Triadic dispute management
	Using theory and models to dissect disputes
		Moore’s Conflict Model
		Power/Rights/Interest Model
		Dimensions Model
		Social Style Model
	Using dispute knowledge to assist in dispute management
		Understanding causes of disputes
		The stages of dispute development: latent and manifest
		Entrapment
	Analysing a dispute
		Positions
		Rights
		Interests
		Emotion
	Positives and negatives of disputes
		Positives
		Negatives
	Special considerations
		Culture
			Indigenous dispute management
		Neuroscience
		Ethics
	Conclusion
2 Communication
	Learning aims
	Understanding communication
	Using theory and models to dissect communication
		Linear interpersonal communication model
		Two-way communication model
		Social skills model of interpersonal communication
		Emotion in interpersonal communication
	Using communication knowledge to assist in dispute management
		Place
		Establishing trust and rapport
		Demonstrating empathy
		Active listening
		Eliciting information: asking questions and constructing an agenda
		Facilitating and checking understanding: summarising, restatement, and reframing
		Generating and testing options: transitions and reality testing
	Positive and negative communication techniques
		Positives
		Negatives
	Special considerations
		Emotional intelligence
		Reflective practice
		Dealing with difficult emotions
		Using assertiveness
		Assertiveness process
	Conclusion
3 History and philosophy of dispute management
	Learning aims
	Understanding dispute management in context
		History
			English beginnings
			Senior Executive Appraisal Mediation
			Independent expert appraisal
			The Australian historical development
		Philosophy
			Five philosophies
			Critique
	Using history and philosophy to understand dispute management
		Socio-political context
		International disputes
	Using history and philosophy to assist in dispute management
		Fairness
		Changing processes
		Roles for dispute process participants
		Ethical considerations
	Positives and negatives in the history and philosophy of dispute management
		Positives
		Negatives
	Special considerations
		Technology, online dispute management, and artificial intelligence
		Rule of Law
	Conclusion
4 Interviewing
	Learning aims
	Understanding interviewing
		The nature and purpose of interviewing
		Types of interviews
		Parties to interview
		Components of an interview
			Pre-interview
			Opening phase
			The interview
			Close
	Using theory and models to dissect interviewing
		Theories
		Models for interviewing
			Motivational interviewing
			Cognitive interviewing
			Timeline interviewing
			T-funnels
	Using knowledge of interviewing to assist in dispute management
		Information – why interviewing?
		Rapport building
		Non-verbal: empathetic and active listening, addressing emotions
		Questions and other techniques
	Positives and negatives of interviewing
		Positives
		Negatives
	Special considerations
		Vulnerable interviewees
		Unconscious bias
		Neuroscience
		Ethics
		Recording of interviews
		Cultural considerations
	Conclusion
5 Negotiation
	Learning aims
	Understanding negotiation
	Using theory and models to dissect negotiation
		The distributive model
		The integrative model
			Separating the people from the problem
			Focus on interests, not positions
			Invent options for mutual gain
			Insist upon using objective criteria
	The process of negotiation
		Preparation
		Negotiation
			Understanding one’s BATNA
			Starting the process: introductions
			Establishing an agenda
			Identifying interests
			Creating options for mutual gain
			Developing objective criteria
		Agreement
			Establishing effective communication
	Using negotiation knowledge to assist in dispute management
		Case example 1 – A dyadic distributive negotiation: Jacob’s job application
			Case study
			Discussion
		Case example 2 – A dyadic integrative negotiation: Naomi’s maternity leave dilemma
			Case study
			Discussion
		Case example 3 – Triadic composite integrative/distributive negotiation: Olivia’s workplace
			Substantive interests
			Relationship interests
			Process interests
			Interests in principle
	Positives and negatives of negotiation
		Positives
		Negatives
	Special considerations
		Issues of power
		Dealing with impasses
		Dealing with difficult tactics
			Bluff and threats
			Low ball/high ball (or good cop/bad cop)
			Subterfuge/red herrings
			Aggressive behaviour
	Conclusion
6 Mediation
	Learning aims
	Understanding mediation
	Using theory and models to dissect mediation
		Theoretical principles of mediation
			Confidentiality in mediation
			Voluntariness
			Self-determination
			Impartiality and procedural fairness
		Models of mediation
			The facilitative model
			The settlement model
			The evaluative model (expert advisory model)
				Advisory mediation
				Wise counsel and tradition-based mediation
			The transformative model
			The narrative model
			Differences in the models
	Using knowledge of mediation to assist in dispute management
		The classic facilitative model: 12 steps
			1 Intake
				Sample intake questions
			2 Preparation
			3 Introductions/mediator’s opening statement
			4 Parties’ opening statements
			5 Mediator summaries
			6 Setting the agenda
			7 Exploration
			8 Private sessions
			9 Option generation
			10 Negotiation
			11 Agreement and close
			12 Debriefing
	Positives and negatives of mediation
		Positives
		Negatives
	Special considerations
		Power in mediation
		Mediation ethics
		Professional conduct in mediation
		Lawyers in mediation
	Conclusion
7 Facilitation
	Learning aims
	Understanding facilitation
		Brief history
		Types of disputes
		Identifying parties to a dispute in facilitation
			Who should be present?
			Multi-party and multiple parties
	Using theory and models to dissect facilitation
		Decision-making styles in groups
		Important factors to consider in any facilitation
		Models
		A basic facilitation model
			Step 1 Intake
			Step 2 Preparation
			Step 3 Commencement
			Step 4 Opening statement by parties
			Step 5 Agenda
			Step 6 Goal statement
			Step 7 Exploration/intervention
			Step 8 Private sessions
			Step 9 Negotiation
			Step 10 Agreement, closure and debrief
	Using knowledge of facilitation to assist in dispute management
		Factors impacting on a facilitation
			Internal factors
			External factors
		Experts
		Facilitator qualities and skills
		Techniques
			Group development theory
			The Johari Window
		Common interventions
			Open space
			Consensus
			World Café
		Other techniques
			Philosopher’s Walk
			Reverse Brainstorming
			The Delphi Method
			Adaptive Learning
	Positives and negatives of facilitation
		Positives
		Negatives
	Special considerations
		Confidentiality
		Training
		Technology
		Related dispute management processes
	Conclusion
8 Conciliation
	Learning aims
	Understanding conciliation
		Characteristics of conciliation
	Using theory and models to dissect conciliation
		The AAT Conciliation Model
			Preparation and conciliator’s opening statement
			Parties’ statements
			Joint exploratory session and negotiation
			Private meetings
			Concluding joint session
		Outcome
	Using knowledge of conciliation to assist in dispute management
		What disputes to conciliate
		The role of conciliators
	Positives and negatives of conciliation
		Positives
		Negatives
	Special considerations
		Good faith
		Confidentiality
	Other dispute management processes similar to conciliation
		Conciliation counselling
		Conferencing
	Conclusion
9 Collaborative practice
	Learning aims
	Understanding Collaborative Practice
	Using theory and models to dissect Collaborative Practice
		Theory of Collaborative Practice
		Models of Collaborative Practice
			Intake interview
			Initial meeting
			Document exchange
			Meetings
			Options
			Agreement
	Using knowledge of Collaborative Practice to assist in dispute management
	Positive and negative outcomes using Collaborative Practice
		Positives
		Negatives
	Special considerations
		Client awareness and use of Collaborative Practice
		Differences to other processes
		Collaborative Practice groups
		Types of disputes
		Costs
		When is Collaborative Practice unsuitable?
		Regulatory environment and ethical considerations
	Conclusion
10 Arbitration
	Learning aims
	Understanding arbitration
		Definition and development of arbitration
		Classification of arbitration
			Based on nationality
			Based on subject matter
			Based on its organisation
		Parties to arbitration
		Arbitrability
	Using theory and models to dissect arbitration
		Philosophical and legal characteristics of arbitration
		Theory
			Party autonomy
			Arbitration rules
			Arbitration laws
			International conventions
			Soft law
			Hierarchy of the sources of norms
	Using knowledge of arbitration to assist in dispute management
		The arbitration agreement
			Scope
			Validity requirements
		Model arbitration process
		Formation of the arbitral tribunal
			Number of arbitrators
			Qualifications
			Appointing arbitrators
			The mandate of arbitrators
		Preliminary case management conference
		Written submissions
		Evidence in arbitration
		Hearings
		Decisions of the tribunal
			Categories of awards
			The rendering of an award
			Recognition and enforcement
	Positives and negatives of arbitration
		Positives
		Negatives
	Special considerations
		The role of courts before arbitration
		Court assistance during the arbitral proceedings
			Interim measures
			Taking of evidence
		Court review of arbitral awards
		Challenges in arbitration
			Challenge to jurisdiction
			Challenging an arbitrator
		Non-commercial arbitration and hybrid methods
	Conclusion
11 Litigation
	Learning aims
	Understanding litigation
		Definition and scope of litigation
		The Australian legal system
		Court jurisdiction and hierarchy
			State and federal courts
			General and specialised courts
			Inferior and superior courts
		Tribunals
	Using theory and models to dissect litigation
		Theory
		Judges and juries
		Model of litigation
			Pre-litigation steps
			Originating process and service
			Pleadings
			Evidence
			Discovery and privilege
			Case management
			Trial
			Outcomes
			Setting aside and appeal
			Enforcement
	Using knowledge of litigation to assist in dispute management
		Parties and causes of action
		Timelines
		Costs
		Res judicata and estoppel
	Positives and negatives of litigation
		Positives
		Negatives
	Special considerations
		Interim relief
		Class actions
		Cross-border litigation
	Conclusion
12 Statutory dispute management schemes and professional practice in dispute management
	Learning aims
	Understanding statutory dispute management schemes
	Using theory and models to dissect statutory dispute management schemes
		Theory
		Models
			Adjudication of payment claims in the building industry
			Farm debt mediation
			Native title claims
			Ombudsman complaints
	Using knowledge of statutory schemes to assist in dispute management
		Construction adjudication
		Farm debt mediation
		Native title claims
		Royal commissions
	Positives and negatives of statutory dispute management schemes
		Positives
		Negatives
	Special considerations
		Codes of conduct and professional liability
		Confidentiality
		Culture and ethics
	Roles and jobs in dispute management
		Lawyers in dispute management
		Working in mediation and conciliation
		Working in adjudication
		Working in arbitration
		Working in litigation: courts and tribunals
	The positives and negatives of working in dispute management
		Positives
		Negatives
	Conclusion
Index