LAWGENRL 424 : Negotiation, Mediation and Dispute Resolution

Law

2020 Semester One (1203) (15 POINTS)

Course Prescription

An introduction to negotiation, mediation and dispute resolution covering: (i) a conceptual study of these processes including the study of the function of law, roles of lawyer, ethics, analysis, cultural and socio-economic factors; and (ii) a practical study of these processes including criteria for choosing resolution methods, techniques, attitudes, problem solving strategies, communication techniques, and effectiveness.

Course Overview

Traditionally, litigation was the default method of dispute resolution for legal disputes. Today lawyers must take a more strategic and creative approach to dispute resolution. Over recent decades there has been an exponential growth in the use of negotiation, mediation and other dispute resolution processes both in New Zealand and internationally. These processes are now recognised within the formal court system in New Zealand and are used in all areas of legal practice, including family, employment, resource management, criminal, construction, insurance and commercial law.
    
This course is an introduction to the theory and practice of dispute resolution. Your ability to understand communication and conflict, to negotiate effectively and to navigate different dispute resolution processes with confidence will make you a better lawyer, business person and citizen of society.

In this course, you will learn practical skills for lawyers involved in conflict diagnosis, communication, negotiation, and mediation, along with the theory and law behind these processes. You will practise skills through participation in practical exercises, group work and class discussion.

The semester is structured as follows:

Introduction and overview: overview of dispute resolution processes in New Zealand and internationally, the spectrum of dispute resolution processes, from negotiation and facilitation, through mediation, conciliation and expert appraisal, to arbitration and litigation.

Negotiation: core principles of different approaches to negotiation; game theory and co-operation; how to prepare for negotiation and the use of best alternative to a negotiated agreement (“BATNA”) / worst alternative to a negotiated agreement (“WATNA”) / realistic alternative to a negotiated agreement (“RATNA”) analysis; negotiation strategy and tactics; selected aspects of conflict and communication theory, including conflict diagnosis (understanding the causes of conflict), conflict behaviour, the components of communication and the relevance of communication to conflict, including specific communication skills.

Mediation: mediation and its distinct phases; assessing suitability for mediation; legal framework issues such as privilege, confidentiality, enforceability of agreements to mediate and mediated agreements, legal incentives to settle and selected liability issues related to mediation; mediation advocacy skills including preparation for mediation and strategies for effective client representation in mediation.

Dispute resolution and the civil justice system: the proper role of private settlement processes in the civil justice system, with a case study based on disputes arising from the Canterbury Earthquake Sequence.

Conclusion: themes, key learning points and the future of the field of dispute resolution.

Online throughout the semester: Group discussions on specific current issues in dispute resolution, namely the relevance of gender in negotiation, negotiation ethics, cross-cultural issues in negotiation and mediation, power dynamics and the role of the mediator, online dispute resolution, statute-based mediation, restorative justice, and the role of dispute resolution teaching in legal education (details below).

We hope that you will enjoy the course, find it intellectually stimulating and rewarding, and see personal and professional use in it.

Course Requirements

Restriction: LAW 447

Capabilities Developed in this Course

Capability 1: Disciplinary Knowledge and Practice
Capability 2: Critical Thinking
Capability 3: Solution Seeking
Capability 4: Communication and Engagement
Capability 5: Independence and Integrity
Capability 6: Social and Environmental Responsibilities
Graduate Profile: Bachelor of Laws

Learning Outcomes

By the end of this course, students will be able to:
  1. Identify and evaluate alternative dispute resolution systems and approaches, including understanding the proper role of private settlement processes in the civil justice system, and the role of lawyers. (Capability 1.1, 2.2, 2.3, 3.1, 3.3, 6.1, 6.2 and 6.3)
  2. Articulate the core principles of and different approaches to negotiation; prepare effectively for a negotiation (including using ATNA analysis); and understand and appropriately apply different negotiation strategies and tactics. (Capability 2.3, 3.3, 4.1, 4.2 and 4.3)
  3. Articulate the theory and practice of mediation and its phases; articulate the legal framework for mediation; develop mediation advocacy skills; and be able to effectively assess the suitability of mediation for particular disputes. (Capability 1.1, 1.2, 1.3, 2.1, 2.3, 3.1, 4.1, 4.2 and 4.3)
  4. Articulate and evaluate conflict and communication theory; and continue to develop strong communication skills that will be useful in your personal and professional life, including: Oral communication in class and during practical exercises; Written communication in different contexts (group discussion, reflective report, research essay); Advocacy in practical exercises; Problem solving and conflict prevention / management in small group work. (Capability 1.2, 1.3, 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, 4.1, 4.2, 4.3, 5.1, 5.2 and 6.2)
  5. Display / continue developing sound research and analysis skills, including through researching and presenting relevant content (research essay, discussion groups), and by coming to grips with fact scenarios for the practical exercises efficiently and effectively. (Capability 1.1, 1.2, 1.3, 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, 4.1, 4.2, 4.3, 5.1, 5.2, 6.1, 6.2 and 6.3)

Assessments

Assessment Type Percentage Classification
Participation (including contributions to online discussions of other groups) 10% Individual Coursework
Online group discussion project 15% Individual Coursework
Online group discussion project 15% Group Coursework
1500 word reflective report 20% Individual Coursework
3000 word research essay 40% Individual Coursework
Assessment Type Learning Outcome Addressed
1 2 3 4 5
Participation (including contributions to online discussions of other groups)
Online group discussion project
Online group discussion project
1500 word reflective report
3000 word research essay
There is no final examination. The assessment reflects the nature of the material covered in the course and focuses on both the theory and practice of dispute resolution. 

Learning Resources

There is one casebook for this course. Supplementary handouts will be provided from time to time through Canvas: https://canvas.auckland.ac.nz. You are also required to read R Fisher and W Ury Getting to Yes: Negotiating Agreement Without Giving In (3rd ed, Penguin, 2011). There are multiple copies of this book in the Davis Law Library, at the university bookshop and online. Earlier editions of this book are acceptable too.
Another useful book, although not required reading, is Grant Morris and Annabel Shaw Mediation in New Zealand (Thomson Reuters, Wellington, 2019).
All outlines and course handouts will be made available on the N,M&DR course page on Canvas. Electronic copies of course announcements will also be posted to Canvas.
See also the links to useful websites and other resources in Canvas.

Workload Expectations

This is a standard 15-point course. There will be around 36 hours of lectures in this course. As a general guide, you should expect a workload of three hours outside of the classroom for each hour spent in class. The guideline for the total workload for this course is 150 hours.

Other Information

This course is taught using a combination of traditional lectures, group discussions and practical exercises to reinforce learning. This approach reflects the course’s mix of theory and practice. This final year law paper is modelled on a postgraduate workshop, where students take responsibility for their own learning.
Ana Lenard will teach the bulk of the course. Nina Khouri will deliver the lectures on the law of mediation.

The course is taught at the following times and places:
 Tuesday 12pm-2pm Small lecture theatre
 Thursday 12pm-2pm Small lecture theatre

This is a 15-point course, which usually translates to 36 hours of class time. We have 48 hours allocated. This is to allow flexibility, particularly in relation to practical exercises and guest lecturers.

Digital Resources

Course materials are made available in a learning and collaboration tool called Canvas which also includes reading lists and lecture recordings (where available).

Please remember that the recording of any class on a personal device requires the permission of the instructor.

Academic Integrity

The University of Auckland will not tolerate cheating, or assisting others to cheat, and views cheating in coursework as a serious academic offence. The work that a student submits for grading must be the student's own work, reflecting their learning. Where work from other sources is used, it must be properly acknowledged and referenced. This requirement also applies to sources on the internet. A student's assessed work may be reviewed against online source material using computerised detection mechanisms.

Inclusive Learning

All students are asked to discuss any impairment related requirements privately, face to face and/or in written form with the course director, lecturer or tutor.

Student Disability Services also provides support for students with a wide range of impairments, both visible and invisible, to succeed and excel at the University. For more information and contact details, please visit the Student Disability Services’ website at http://disability.auckland.ac.nz

Special Circumstances

If your ability to complete assessed coursework is affected by illness or other personal circumstances outside of your control, contact a Student Academic and Support Adviser as soon as possible before the assessment is due.

If your personal circumstances significantly affect your performance, or preparation, for an exam or eligible written test, refer to the University’s aegrotat or compassionate consideration page: https://www.auckland.ac.nz/en/students/academic-information/exams-and-final-results/during-exams/aegrotat-and-compassionate-consideration.html.

This should be done as soon as possible and no later than seven days after the affected test or exam date.

Student Feedback

At the end of every semester students will be invited to give feedback on the course and teaching through a tool called SET or Qualtrics. The lecturers and course co-ordinators will consider all feedback and respond with summaries and actions.

Your feedback helps teachers to improve the course and its delivery for future students.

Class Representatives in each class can take feedback to the department and faculty staff-student consultative committees.

Student Charter and Responsibilities

The Student Charter assumes and acknowledges that students are active participants in the learning process and that they have responsibilities to the institution and the international community of scholars. The University expects that students will act at all times in a way that demonstrates respect for the rights of other students and staff so that the learning environment is both safe and productive. For further information visit Student Charter (https://www.auckland.ac.nz/en/students/forms-policies-and-guidelines/student-policies-and-guidelines/student-charter.html).

Disclaimer

Elements of this outline may be subject to change. The latest information about the course will be available for enrolled students in Canvas.

In this course you may be asked to submit your coursework assessments digitally. The University reserves the right to conduct scheduled tests and examinations for this course online or through the use of computers or other electronic devices. Where tests or examinations are conducted online remote invigilation arrangements may be used. The final decision on the completion mode for a test or examination, and remote invigilation arrangements where applicable, will be advised to students at least 10 days prior to the scheduled date of the assessment, or in the case of an examination when the examination timetable is published.

Published on 20/12/2019 09:57 a.m.