LAW5001 DISPUTE RESOLUTION

Instructions

Submission

1. This assessment is worth 50% of the available marks for this subject.

1. All students must complete their academic integrity declaration with the assessment submission.

1. Submission must occur through the LAW5001 LMS site before 11:59 pm on Monday 29 May. It will be scanned via Turnitin for plagiarism.

1. There is a strict maximum word count of 2500 words for this assessment. There is no penalty if you write below the maximum word limit. If you write above the maximum, the excess will not be read or marked. There is an indicative word count for Part A. You may check the LTU library website for resources on essay writing for Part A. For parts B and C, you are expected to keep in mind the marks allocated to each question, to guide you on the word count for answering each question.

1. All substantial text should be incorporated into the body of your assignment, not in the footnotes. If substantial text is incorporated in your footnotes, it must be included in your word count. As long as you use footnotes only for brief referencing, these do not count in the word limit.

1. This assessment is subject to the University policies on extensions referred to in the SLG. Unapproved late submissions will have marks deducted accordingly.

1. If you have an approved extension or Special Consideration Approval, please attach it to the front page of your assessment before submitting it on LMS.

1. You are expected to carry out some research to complete Part A to a satisfactory standard. The quality of your writing and the appropriateness of your sources is more important than the number of references used.

1. Subheadings are encouraged and are not included in your word count. Use subheadings that that give context: e.g. make a statement or ask a question.

1. Use 12 font, 5 spacing and A4 margins. A font that is easy to read should be used such as Arial or Times New Roman. You do not need to provide a cover page.

1. A Bibliography IS required and is not included in your word count.

1. Attach the assessment as a Word document. DO NOT submit a pdf.

1. Referencing should comply with the current edition of the

1. It is necessary to use quotation marks (“ ”) when quoting an author’s words and cite the source in a footnote. When referring to an author’s ideas and/or paraphrasing their words, it is necessary to footnote the source.

1. Refer to relevant legal provisions wherever appropriate.

Format

There are three parts to the assessment:

• Part A: Essay question (15 marks)

You must answer ONE (1) question among three choices.

• Part B: Question based on a case or hypothetical scenario (15 marks)

You must answer this question.

o Part C: Skill-based questions which may be based on given sets of facts (20 marks).

2

You must answer all questions.

Presentation

You must answer each question specifically. The marking rubric is attached. Ensure your submission clearly indicates which question you are answering by using headings such as ‘Part A, Question (1)’, or ‘Question (2)’. Do NOT blend your answers to the specific questions together.

Ensure you save all your drafts and keep copies of your assessment drafts in more than one place, e.g.

on your hard drive and on a usb.

Topics

The topics assessed may include any topics covered in this subject. You are to decide which topics should be addressed, based on the questions. Do not answer using topics that have NOT been covered in this subject. If you do, you will not receive any marks for doing so.

Academic Integrity

You should not do anything that compromises the academic integrity of the final assessment process.

Activities that you should not undertake during the time of the final assessment include:

• Discuss or share the contents of a final assessment paper with any other person in any way;

• Discuss the subject matter of a final assessment with any other person in any way;

• Exchange any information about or answers for the final assessment with any other person;

• Undertake the final assessment in close enough physical proximity with any other person to allow that other person to see the answers you have drafted.

You must not at any time engage any other person or Artificial Intelligence (AI) program and/or online site to undertake any part of a final assessment on your behalf. Do not engage with any contract cheating sites or operators and do not use AI.

As a law student, you place your admission to legal practice at risk if an allegation or finding of serious academic misconduct is made against you.

PART A: ESSAY QUESTION (15 marks)

Answer of the following questions in essay form.

(Indicative word count 1200-1500 words)

Can ‘justice’ be achieved in non-adversarial processes? Drawing on examples from various practises in Australia, give reasons for your answer.

PART B: HYPOTHETICAL SCENARIO BASED QUESTION (15 marks)

Answer the question for Part B based on the following scenario:

Dario’s son Kaylan is 12 years old and lives with a learning disability. Dario is adamant that Kaylan is to be educated in a mainstream school, so 12 months ago he enrolled him in the local public high school. However, Dario claims the school has failed his son because they failed to provide a teacher’s aide as agreed and failed to deal with playground bullying of Kaylan.

Dario is concerned that Kaylan’s disability is being aggravated by these circumstances and is also concerned that the school will expel him. Kaylan’s behaviour at home and at school has become worse over the last 12 months and he is currently on a three-week suspension for throwing a stone at a teacher. Dario claims that Kaylan’s teachers frequently fail to respond to requests to discuss his management and often fail to follow through on agreed management strategies.

The School claims that they have followed the recommendations of Kaylan’s specialists and support workers, but Dario has unrealistic expectations of teacher and the available support. The School also contends that Kaylan’s behaviour has become increasingly problematic which led to the School suspending Kaylan for kicking and biting other students in the playground and throwing a rock at a teacher who intervened.

Dario is very angry and believes Kaylan is being denied an equal right to education. He has threatened to lodge a complaint based on unlawful disability discrimination with the Australian Human Rights Commission. The parties have agreed to try mediation first. The school is represented by its principal Shala who suggests to Dario that they engage Andre who works as an independent mediator. The mediator was a friend of Shala’s from university, whom Shala had kept in close touch with over the years. However, Dario has not been informed of this. At the mediation, Shala pretends that she has never met Andre before and Andre does the same.

Later in private sessions, Andre decides to help Shala so she can get rid of Kaylan from her school. Andre tells Dario that Shala is trying her best to dissuade teachers at the school from lodging intervention order applications against Dario and Shala is very concerned that this will become an ugly public scandal. Andre proceeds to say the following to Dario ‘if I were you mate, I would take my son and run away as far as I could from this school’.

In response to Andre’s advice, Dario confides in Andre, who subsequently calls Shala during the break to inform her of what Dario has told him. Shala is then able to use this information to her advantage in the mediation, giving her the upper hand in the process. The parties come to a settlement which results in Dario agreeing to unenroll Kaylan from the school. After the mediation, Andre was so proud of his good work that he advertised the mediation between the parties as a case study showing how effective he was at achieving results.

Question

Discuss which aspects of the mediator’s conduct of the mediation are inconsistent with the general values and/or principles of facilitative mediation and the ethical standards as set out by the NADRAC framework for ADR standards?

PART C: SKILLS BASED QUESTIONS (20 marks)

Answer ALL of the following questions.

1. As a mediator, summarize the following disputant statement in a few sentences that capture both the substance and the underlying emotion: ‘I can’t stand him, he makes me so angry. He agreed to pay half the mortgage and as usual he’s reneged on his promise. The kids love that house and all their friends are in that suburb. I just can’t take on a second job, I’m exhausted from my full- time job, the housework and all the parenting and he’s no help. I’m about to lose my mind.’ (3 marks)

2. List three ways in which a mediator/listener might encourage a speaker to talk about a dispute that has upset him or her. (3 marks)

3. Change the following into an open question designed to neutralise a dispute:

‘Can’t you ever get to a meeting on time?’ (1 mark)

4. According to the model presented in this subject, between which two stages does the creating options stage occur? What are the purposes of this stage? As a mediator, how would you introduce it? (2 marks)

5. About 15 minutes into the mediation process, Anh, Ian’s partner knocks at the door of the mediation room and wants to enter and ‘support Ian through the process’. How would you deal with this situation as a mediator? (1 mark)

6. Define the term ‘interest’ and apply the concept in the following example. ‘Iris says she will quit if the business does not pay her what she is worth, stop asking her to work evening overtime and give her permission to take annual leave’. What might be three underlying interests for her? (3 marks)
7. As a mediator, restate (in different words) the following declaration from one of the disputants. The aim is to change the focus from its initial position to possible underlying interests while preserving the underlying emotion, to facilitate a problem-solving approach acceptable to the other disputant: ‘If she writes one more outrageously negative review of my plays and doesn’t take down the negative reviews she’s already posted, I will sue her for damages for loss of income’. (3 marks)
8. Change the following into an assertive (‘I’) statement: You’re always late. You’ve got no respect for me.’ (1 mark)

9. When it comes time to suggest options for managing a dispute under mediation with the facilitative mediation model, Ahmed is silent while Tranh, his boss, makes half a dozen suggestions. There are a range of reasons why Ahmed might be acting this way. List three responses by the mediator that are consistent with the facilitative mediation model. (3 marks)