Principles of Dispute Resolution

Principles of Dispute Resolution

By David Spencer


$73.00 RRP

Date: 24/05/2011

Code: 9780455228815

Thomson Reuters, AUSTRALIA


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Understand the principles of dispute resolution quickly and easily with this clear and concise guide.
Principles of Dispute Resolution
explains the theory, philosophy and practice of dispute resolution in Australia.

Professor David Spencer is the leading writer in Australia on the development of the law of dispute resolution in Australia. Utilising a practical outlook, he examines the basic methods of dispute resolution in this book.

Principles of Dispute Resolution provides up-to-date commentary on the development of the law arising from the increasing use of dispute resolution in both the law and in business. In particular, the text focuses on the new and amended legislation in both State and federal jurisdictions, along with the developing case law on dispute resolution.

Topics covered by this work include:
• Negotiation
• Mediation
• Arbitration
• Other dispute resolution processes such as partnering, dispute review boards and collaborative law
• Court annexed dispute resolution
• Ethics, standards and accreditation
• Legal issues
• On line dispute resolution and the future of dispute resolution.

Written simply and succinctly, this text is a valuable guide to help students and practitioners alike understand the fundamentals of dispute resolution law.

Editorial Reviews

From:  (2012) 23 ADRJ 71
Reviewed by: Ruth Charlton

Principles of Dispute Resolution sets out to explain the theory, philosophy and practice of dispute resolution in Australia. It succeeds admirably.

The back cover, which provides a snapshot of the book’s contents, states: "The Book provides up-to-date commentary on the development of law arising from the increasing use of dispute resolution in both law and in business. In particular the text focuses on the new and amended legislation in both State and Federal jurisdictions, along with the developing case law on disputes resolution." Obviously much more is included in the work than the potted description provided.

In addition to the more well-known processes such as negotiation, mediation and arbitration, it includes all other dispute resolution activities such as dispute review boards as well as the lesser-known topics such as collaborative law.

The introduction defines what exactly is dispute resolution and Spencer comments how its history goes back probably to the dawn of time. He suggests how a barrister 20 years ago would have vigorously eschewed the idea of ADR, but that the same barrister today might be intricately involved in one or more of the dispute resolution processes. As Spencer explains, the NADRAC definition of dispute resolution (genetically known as "ADR") throws a wide net and includes determinative processes such as early neutral evaluation.

The chapter on negotiation is one of the most comprehensive this reviewer has come across, and is particularly useful, given that negotiation is the basic "kick off" point for most other processes. The formula for a successful negotiator is described.

The mediation chapter follows and the relationship between negotiation and mediation is explained. It defines the various types of processes which now fall under the mediation umbrella, such as restorative justice and how court-annexed mediation has become part of the spectrum.

The philosophy of mediation and the hall marks that have set mediation apart from any other form of dispute resolution is discussed. Reference is also made to the reality that the underlying principles of classic mediation have been compromised, for example, how that of voluntary participation has been whittled down. Balanced arguments for and against compulsory attendance are presented.

In defining arbitration, Spencer notes that of all dispute resolution processes available, arbitration most closely resembles the formality of litigation and the necessity to make awards according to law. Those now involved in arbitration, those who may be involved in future and interested students reap a bonanza of legislative information and a plethora of 26 most useful case notes. Thirty-four pages are devoted to this topic.

Chapter 6 deals with court-annexed mediation, both State and federal, and provides an at-a-glance "centrefold" spread sheet which sets out a "Comparative Table of Federal, State and Territory Provisions Dealing with Court Annexed Dispute Resolution".

Ethical and accreditation issues wrap around the whole of dispute resolution discussions and Spencer stresses the importance of developing ethical and practice standards for those solely involved in dispute resolution as a vocation or profession in contrast to those where it is simply an "add on" to their paramount professional practices which have their own rules and standards. Those organisations which have developed their own ADR practice codes are set out in the appendices, for example, the New South Wales Law Society’s Charter on Mediation Practice: A Guide to Rights and Responsibilities of Participants . As Spencer wryly observes, compulsory accreditation will provide a bonanza for training organisations. Listed are those organisations which offer their services via practitioner panels and through training provision.

The penultimate chapter deals with legal issues and there is discussion, for example, on the competing interests of confidentiality and public policy issues such as transparency.

Finally the future of dispute resolution is probed, including the development of on-line dispute resolution and the for and against arguments for this phenomenon which is still in its infancy.

This most useful book is of relevance for practitioners in all Australian States and Territories. It is noted that most universities provide courses in dispute resolution either as mainstream subjects or as electives. For this reason alone, it is a "must have" for all Australian university libraries as well as for the libraries of private firms.

The book is highly recommended. David Spencer should be congratulated on producing this comprehensive and important work, not only for its content but for the reader-friendly style in which it is written.

Table of Contents

  1. Introduction
  2. Negotiation
  3. Mediation
  4. Arbitration
  5. Other dispute resolution processes
  6. Court annexed dispute resolution
  7. Ethics, standards and accreditation
  8. Legal issues
  9. On line dispute resolution and the future of dispute resolution.

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