Dispute Resolution & Ethics a1810145
Lectures
L1 - Introduction
Covers a lot of important legal and practical issues
• Conflict and dispute theory
• Ways of resolving civil disputes
• Court processes – how to manage a case that is going to go to trial
• Alternatives to Court – alternative disputes resolution (ADR) models to avoid litigation
• Professional ethics
Materials
• Textbook: Castles & Hewitt, Ethical Resolution of Civil Disputes (Thomson Reuters, 2020) (the rule
number does not match, three extra numbers)
• Weekly seminar preparation guides
• Additional readings or cases (not many, will be made available on MyUni unless finding them is one
of your tasks for the week)
• Uniform Civil Rules (SA) available online
• Australian Solicitors’ Conduct Rules
• Simulated case file (Zhang v RES) the mock case
Simulated case file
• Throughout the semester, we work on one major simulated litigation: Zhang v RES
• You will work in practice groups in your seminar class representing either the Applicant or the
Respondent.
• Practice groups are finalised in seminar 5, but you will have the opportunity to work in groups in
earlier seminars.
• Members of your practice group must be enrolled in the same seminar class as you.
• W3-4: going to court, pleading, the documents that the parties exchange to narrow downs
• W5-7: what can you claim privilege over, what can you see
• W8-10: conducting investigation, how do you find evidence
Page 1 of 144
,Dispute Resolution & Ethics a1810145
Lectures
• W11-12: costs, appeal rights, enforcement
Seminars (start in week 2)
• 3 hours x 11 weeks (usually 3 activities, with breaks)
• Interactive – lots of ‘doing’ – being prepared is really important
• NOTE: Compulsory minimum attendance requirement
(8 of 11 seminars)
• Designed to help you develop a range of critical skills that you need in professional life:
Assessment Due % Redeemable
Multiple choice quizzes x 5 Weeks 4, 5, 6, 7 & 9 (5pm Sat) 10% No
(2%
each)
Pleadings & ADR Assignment First week of mid-semester break 15% Yes
(1200 words) (2pm Thurs)
First Interlocutory Application In week 8 seminar 5% No
(group) 20 mins orally
Second Interlocutory In week 10 seminar 5% No
Application (group) 20 mins
orally
Discovery, Investigation and Week 12 (2pm Thurs) 15% Yes
Costs Assignment (1200 words)
Exam (2 hours) TBC 50% No
Group work
• The capacity to work effectively in a team is a very important part of most legal jobs. Employers will
want to know that you can do it!
Page 2 of 144
,Dispute Resolution & Ethics a1810145
Lectures
• DRE provides you with the opportunity to gain structured experience working in a team,
representing a (simulated) client, and practice managing a workload, dealing with any problems,
and developing your own teamwork skills.
• Draw on your existing experience in working in teams (family, sport, job, study)
• Group work manual (MyUni)
• Your seminar leader can help you with day to day advice on work management, group
management, etc
• Course Coordinators can offer support with day to day team management and mediate if you need
intervention or support
Conflicts and disputes (Theory)
Conflict and dispute theory
Conflict Dispute
• Resources (scare resources) When underlying conflict erupts and parties to
• Behavior (proper behavior?) conflict can no longer manage their relationship
• Ideology (different ideology?)
At which time choices have to be made about how to fix the problem.
Resolving civil disputes
Go to court • Civil justice system is For:
designed to provide every Natural third party
member of society with
an unbiased and Against:
accessible venue to Costly
resolve dispute. Time consuming
• Question: does it?
Alternative dispute resolution • Mediation Definition: alternative dispute
(ADR) theory and practice • Arbitration resolution (ADR) means getting a
• Dispute counselling neutral third party to assist the
• Conciliation disputants to sort out the dispute.
• Etc
Emotions fuel disputes and limit resolution options
How did you FEEL about the other party?
How did you feel about talking with them?
Did you TRUST them?
How did you feel about making the first move?
Were you anxious?
Angry?
Betrayed?
Fed up?
Just wanted it to go away?
Page 3 of 144
, Dispute Resolution & Ethics a1810145
Lectures
Typical dispute behaviour
• Emotion driving responses to conflict/dispute
• Not empathising
• Unshakeable belief that you are RIGHT and they are WRONG
• Only seeing one perspective
• Avoiding conflict
• Unable to trust/communicate
• Anxious and distressed
• Sad and uncertain
• Offended or angry
Þ Barriers to resolution
Typical client behaviour
What we are talking about here is typical client behavior. The sort of typical client behavior that you will
encounter when you first meet the client.
Going to court will fix it, right? (not really)
It can be hard for people to get over the numerous barriers to resolving disputes – even the simplest step,
like talking to each other, becomes insurmountable. People seldom think about going straight to Court if
they are in a conflict or a dispute. They usually try to fix it up themselves. And usually, they do. But
sometimes, nothing works, and culturally we think that ‘going to court’ will fix it.
Human needs The law The court and court process
• Emotions • Defines disputes by • Rules that set the steps
• Conflict reference to legal causes that you take to get a
• Territorial of action case organized for a trial.
• Competition • It looks for facts that will • Limited to legal issues
• Anger support or disprove those • RISK that you will not win.
• Revenge legal causes of action • Win lose or draw, it will
• Avoidance • That’s all it’s interested in cost A LOT OF MONEY
• Vindication • None of this
Page 4 of 144
Lectures
L1 - Introduction
Covers a lot of important legal and practical issues
• Conflict and dispute theory
• Ways of resolving civil disputes
• Court processes – how to manage a case that is going to go to trial
• Alternatives to Court – alternative disputes resolution (ADR) models to avoid litigation
• Professional ethics
Materials
• Textbook: Castles & Hewitt, Ethical Resolution of Civil Disputes (Thomson Reuters, 2020) (the rule
number does not match, three extra numbers)
• Weekly seminar preparation guides
• Additional readings or cases (not many, will be made available on MyUni unless finding them is one
of your tasks for the week)
• Uniform Civil Rules (SA) available online
• Australian Solicitors’ Conduct Rules
• Simulated case file (Zhang v RES) the mock case
Simulated case file
• Throughout the semester, we work on one major simulated litigation: Zhang v RES
• You will work in practice groups in your seminar class representing either the Applicant or the
Respondent.
• Practice groups are finalised in seminar 5, but you will have the opportunity to work in groups in
earlier seminars.
• Members of your practice group must be enrolled in the same seminar class as you.
• W3-4: going to court, pleading, the documents that the parties exchange to narrow downs
• W5-7: what can you claim privilege over, what can you see
• W8-10: conducting investigation, how do you find evidence
Page 1 of 144
,Dispute Resolution & Ethics a1810145
Lectures
• W11-12: costs, appeal rights, enforcement
Seminars (start in week 2)
• 3 hours x 11 weeks (usually 3 activities, with breaks)
• Interactive – lots of ‘doing’ – being prepared is really important
• NOTE: Compulsory minimum attendance requirement
(8 of 11 seminars)
• Designed to help you develop a range of critical skills that you need in professional life:
Assessment Due % Redeemable
Multiple choice quizzes x 5 Weeks 4, 5, 6, 7 & 9 (5pm Sat) 10% No
(2%
each)
Pleadings & ADR Assignment First week of mid-semester break 15% Yes
(1200 words) (2pm Thurs)
First Interlocutory Application In week 8 seminar 5% No
(group) 20 mins orally
Second Interlocutory In week 10 seminar 5% No
Application (group) 20 mins
orally
Discovery, Investigation and Week 12 (2pm Thurs) 15% Yes
Costs Assignment (1200 words)
Exam (2 hours) TBC 50% No
Group work
• The capacity to work effectively in a team is a very important part of most legal jobs. Employers will
want to know that you can do it!
Page 2 of 144
,Dispute Resolution & Ethics a1810145
Lectures
• DRE provides you with the opportunity to gain structured experience working in a team,
representing a (simulated) client, and practice managing a workload, dealing with any problems,
and developing your own teamwork skills.
• Draw on your existing experience in working in teams (family, sport, job, study)
• Group work manual (MyUni)
• Your seminar leader can help you with day to day advice on work management, group
management, etc
• Course Coordinators can offer support with day to day team management and mediate if you need
intervention or support
Conflicts and disputes (Theory)
Conflict and dispute theory
Conflict Dispute
• Resources (scare resources) When underlying conflict erupts and parties to
• Behavior (proper behavior?) conflict can no longer manage their relationship
• Ideology (different ideology?)
At which time choices have to be made about how to fix the problem.
Resolving civil disputes
Go to court • Civil justice system is For:
designed to provide every Natural third party
member of society with
an unbiased and Against:
accessible venue to Costly
resolve dispute. Time consuming
• Question: does it?
Alternative dispute resolution • Mediation Definition: alternative dispute
(ADR) theory and practice • Arbitration resolution (ADR) means getting a
• Dispute counselling neutral third party to assist the
• Conciliation disputants to sort out the dispute.
• Etc
Emotions fuel disputes and limit resolution options
How did you FEEL about the other party?
How did you feel about talking with them?
Did you TRUST them?
How did you feel about making the first move?
Were you anxious?
Angry?
Betrayed?
Fed up?
Just wanted it to go away?
Page 3 of 144
, Dispute Resolution & Ethics a1810145
Lectures
Typical dispute behaviour
• Emotion driving responses to conflict/dispute
• Not empathising
• Unshakeable belief that you are RIGHT and they are WRONG
• Only seeing one perspective
• Avoiding conflict
• Unable to trust/communicate
• Anxious and distressed
• Sad and uncertain
• Offended or angry
Þ Barriers to resolution
Typical client behaviour
What we are talking about here is typical client behavior. The sort of typical client behavior that you will
encounter when you first meet the client.
Going to court will fix it, right? (not really)
It can be hard for people to get over the numerous barriers to resolving disputes – even the simplest step,
like talking to each other, becomes insurmountable. People seldom think about going straight to Court if
they are in a conflict or a dispute. They usually try to fix it up themselves. And usually, they do. But
sometimes, nothing works, and culturally we think that ‘going to court’ will fix it.
Human needs The law The court and court process
• Emotions • Defines disputes by • Rules that set the steps
• Conflict reference to legal causes that you take to get a
• Territorial of action case organized for a trial.
• Competition • It looks for facts that will • Limited to legal issues
• Anger support or disprove those • RISK that you will not win.
• Revenge legal causes of action • Win lose or draw, it will
• Avoidance • That’s all it’s interested in cost A LOT OF MONEY
• Vindication • None of this
Page 4 of 144
