LLB103 2021- Week 1 Lecture Notes Sem 1 PDF

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LLB103 2021- Semester 1 -Week 1 - Lecture Notes (online exam due to covid)...

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LLB103

Week 1 Introduction

James Duffy [email protected] Lisa Davis [email protected] What is the unit about?  The importance of our role in assisting people to resolve disputes  The nature and scope of key dispute resolution processes such as negotiation, mediation, conciliation, arbitration and litigation.  The importance of non-adversarial approaches to legal practice and advocacy.  Appreciating the value of, but also taking a critical perspective of, the adversarial legal system.  Supporting the development of a positive professional legal identity. Assessment: Role-Play and Reflective Practice  Role-Play 10%, Reflective Practice 30%  This assessment requires you to participate in an assessable role-play in either the week 7 or 8 tutorial. You will then reflect upon your performance using the 4R’s method of reflection (which is taught in this unit).  Word limit: 2000 words  If you do your role-play in week 7: - Your reflective practice assignment is due Thur 13 May 11:59pm through Turnitin.  If you do your role-play in week 8: - Your reflective practice assignment is due Thur 20 May 11:59pm through Turnitin.  There is no external school run for external students. The expectation is that external students are enrolled in a weekly tutorial.  You will form mediation role-play groups before your week 6 tutorial.  You will do a practice mediation role-play in your week 6 tutorial and receive feedback on your performance.  You must be at the week 6 tutorial, as well as your assessable tutorial in either week 7 or 8.  A public holiday on Monday week 8 causes some issues. Tutors will explain the alternative arrangements. Assessment: Central Exam  60%.  The exam is designed to assess your understanding of (and ability to apply) unit concepts.  It will be held during the central exam block.  The format of the final exam will depend on whether it is invigilated, or whether it is a 24 hour “at home” exam.  I will confirm these details with you as soon as I know them. The Contemporary Importance of Dispute Resolution for Lawyering and Lawyers Defining ADR

LLB103 

Week 1 ‘ADR is an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance.’ (NADRAC, 2003, p. 4)

Understanding the key process  Negotiation  Mediation  Conciliation  Case appraisal  Arbitration  Litigation The Dispute Resolution Spectrum

Walk away or lump it

Negotiation

Mediation

Conciliation

Case Appraisal

Arbitration

Litigation

The contemporary importance of Dispute Resolution (DR) for law students, lawyers and lawyering 1. Dispute Resolution is an important aspect of contemporary legal practice  ADR is now the main way that disputes in Australia (and worldwide) are resolved.  Litigation continues to be privileged as a dispute resolution tool in our law schools.  It has been estimated that the number of commenced civil actions that culminate in adjudication is between 5-10%. 2. Participation in DR Processes is Required Under Certain Legislation  Legislation now makes ADR compulsory in a number of circumstances.  For example, the Civil Dispute Resolution Act 2011 (Cth) was enacted to ensure that parties take genuine steps to resolve disputes before civil proceedings are instituted (s 3).  Section 53A of the Federal Court of Australia Act 1976 (Cth) allows a court to refer a matter to mediation or arbitration. 3. Lawyers have a Duty to Advise about DR  Legal practitioners have a duty to advise a client about alternatives to litigation:  Rule 7.2 of the Australian Solicitors Conduct Rules states: - A solicitor must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation. 4. Good lawyers possess emotional intelligence and DR instruction increases emotional intelligence

LLB103

Week 1

Emotional intelligence is an important trait or ability for lawyers to possess because the lawyering role is people intensive.  Emotion may be the cause of conflict, the result of conflict or the reason why a conflict escalates.  ADR knowledge, skills and attitudes can increase the emotional intelligence of legal practitioners and their interpersonal and intrapersonal efficacy. 5. Lawyers need to understand about the Nature and Theory of Conflict  Helping clients with their conflict is at the heart of the lawyer’s role.  DR instruction is important because it helps you to understand what conflict actually is, and how it might be sensibly managed to the client’s benefit.  DR instruction allows law students to appreciate that conflict may also be managed around power, interests and extra-legal considerations 6. Teaching DR supports law students Psychology Well-being  DR instruction can increase your sense of belonging at law school.  DR instruction can affirm intrinsic motivations for studying law, and connect with your values.  DR instruction can create connections with other students.  DR instruction can affirm your sense of competence.  See Jill Howieson, ‘ADR education: Creating engagement and increasing mental wellbeing through an interactive and constructive approach’ (2011) 22 ADRJ 58. 7. DR Instruction Satisfies the Threshold Learning Outcome for Law  The TLOs cover the areas of: - knowledge (TLO 1) - ethics and professional responsibility (TLO 2) - thinking skills (TLO 3) - research skills (TLO 4) - communication and collaboration (TLO 5) - self-management (TLO 6) 8. DR Instruction can help you to develop a Positive Professional Identity  DR instruction can help to promote a positive professional identity for law students because it exposes you to a broader (and arguably more humane) picture as to what it means to be, and practice, as a lawyer.  DR can expand the possibilities available to you in conceiving your future legal (or non-legal) professional role. 9. NADRAC supports the Mandatory Inclusion of DR in the Law Curriculum  NADRAC was the National ADR Advisory Council that advised the Federal AG on matters relating to ADR.  ‘NADRAC believes that better training at universities is required and that ADR must be elevated from a mere adjunct to civil procedure or litigation subjects to being taught as a full course. An ADR course should be a compulsory core subject that is a prerequisite for admission.’ 10.Law students are asking for Dispute Resolution Skills and Knowledge  When this subject was an elective it had the highest enrolment of any elective in the QUT degree!  DR knowledge, skills and attitudes are real world, authentic and transferable. 

LLB103

Week 1

“This subject clearly demonstrated that the skills we have learnt are relevant for future practice in law. This has provided me with more motivation to succeed.” The importance of developing a positive professional identity for lawyers  Starting to see an authentic sense of who you are going to be as a lawyer and relating that to what you are learning at law school, will promote both your success and wellbeing at law school.  A positive professional identity promotes engagement, focus, commitment and motivation for your learning. ...