Monash University Handbook 2011 Postgraduate - Unit

Refer to the specific census and withdrawal dates for the semester(s) in which this unit is offered.

Synopsis

This unit will offer experienced family practitioners, policy makers and those generally interested in dispute resolution alike a grasp of the principles of the innovative field of non-adversarial justice and a comprehensive framework for analysing the appropriateness and integrity of existing non-adversarial practices in family law. It will assist students to position themselves at the forefront of law reform through sharpening their policy analysis skills and providing them with a structure for predicting the future development of practices in the family law field.

This unit will examine and critically assess the range of non-adversarial practices which are central to Australian and international family law systems. It approaches the study of family law by focusing on forms of conflict management, dispute prevention and dispute resolution employed in that field. In particular the subject will explore the more recent developments in family dispute resolution processes in Australia and overseas. These practices will be examined from the perspective of 'non-adversarial justice', a cutting edge framework developed to explore the common themes and links between disparate practices developed in reaction to the adversarial system in a variety of settings within the justice system.

Non-adversarial justice is a focus on non-court dispute resolution or on processes used by courts which adopt a problem-solving approach. Theories of non-adversarial justice emanate from multiple disciplines and include alternative/family dispute resolution (and its component processes such as mediation, evaluation, negotiation, conciliation and arbitration), participatory justice, therapeutic jurisprudence, preventative law, restorative justice, collaborative law, diversion, shadow of the law theory, problem-solving courts, managerial justice and multi-door courthouse theory. Non-adversarial techniques and processes have been employed in fields as diverse as native title land negotiations, criminal cases, disputes over telephone bills or banking, negotiations over work conditions, disputes over care of children after separation, decisions about where to locate hazardous materials sites and in truth and reconciliation commissions.

This unit starts by critically examining our adversarial legal system and how family lawyers operate (and are perceived to operate) within it. We then explore the nature of non-adversarial justice, the various theories behind the movement and the reasons for the perceived need for non-adversarial processes. A focus of student learning will be upon understanding when the use of such processes may be appropriate or inappropriate. The aim of teaching students this is to help them to understand the role that lawyers can play in preventing conflict and in providing non-adversarial means of conflict management or resolution as well as reflecting upon the ethics of legal practice in such circumstances. Role plays may be used to assist with gaining understanding in this area. The unit will conclude with a consideration of the role of family courts, family judges and governments in adopting non-adversarial processes.

As part of their assessment, students will be asked to reflect upon their own experiences and understanding of family law legal processes. They will be asked to evaluate the process from the perspective of participants, especially clients. Students will be expected to suggest changes to practice, policy or law that would improve the process. This research essay will also test students' research and analytical skills. Students will be encouraged to research an aspect of the syllabus in order to gain and deeper understanding of the interaction between the theory and practice of non adversarial justice.

Examples of specific dispute resolution services and practices that will be examined include:

• Family Relationship Centres
• Family Violence Courts
• The Family and Federal Magistrates' Courts including the Less Adversarial Trial Process, the Magellan List and the domestic violence strategy
• Family Dispute Resolution and allied non-adversarial community practices such as counselling, contact centres, parental educational services, mediation, conciliation and arbitration practitioners
• Legal aid conferencing (Roundtable Dispute Resolution in Victoria)
• Pre-action procedures;
• Collaborative law
• Independent Children's Lawyers and Family Reports
• Lawyers' negotiation practices
• Magistrates' Court Intervention Order Lists

Objectives

Upon completion of this unit, students should:

1. be able to critically analyse the nature of the existing family law system, how adversarial it is in nature, including its benefits and pitfalls
2. understand the nature of non-adversarial justice, the theories behind the movement and the reasons for the perceived need for non-adversarial processes
3. understand theories of interpersonal conflict, how disputes arise, conflict management and dispute prevention
4. understand and be able to explain the theoretical underpinnings and the nature of a range of non adversarial processes in family law
5. be able to critically analyse each of the family law non-adversarial processes taught for their various strengths and weaknesses and be able to identify which non-adversarial processes may or may not be appropriate in particular cases
6. understand and evaluate the place of non adversarial processes within the family law system
7. be able to appreciate the complexities of the relationship between law and non-adversarial processes
8. be able to explain how family courts can apply principles of non-adversarial justice
9. understand how family lawyers can and do work with non-adversarial processes and appreciate the role that lawyers can play in directing clients towards non-adversarial processes in appropriate cases
10. understand and be able to critically comment on appropriate ethical standards of conduct for of family lawyers and other professionals working with non-adversarial processes in the family law context
11. develop skills in critical analysis of legal processes including making recommendations for change or law reform.

Assessment

Class Participation: 10%
Research Paper (6,750 words): 90%

Contact hours

24 contact hours per semester (either intensive, semi-intensive or semester long, depending on the Faculty resources, timetabling and requirements)