module specification

LC7026 - Civil and Commercial Mediation and Alternative Dispute Resolution (2018/19)

Module specification Module approved to run in 2018/19
Module title Civil and Commercial Mediation and Alternative Dispute Resolution
Module level Masters (07)
Credit rating for module 13.5
School Guildhall School of Business and Law
Total study hours 135
 
27 hours Scheduled learning & teaching activities
108 hours Guided independent study
Assessment components
Type Weighting Qualifying mark Description
Seen Examination 100%   3 hour open book exam with advance disclosure of documents and is of a transactional nature.
Running in 2018/19
Period Campus Day Time Module Leader
Spring semester City Monday Afternoon
Spring semester City Tuesday Afternoon
Spring semester City Wednesday Evening

Module summary

 This module focuses on identifying the overall nature of the various methods of ADR,  progressing that ADR method through a series of steps and decisions including, where appropriate, drafting documentation.

Prior learning requirements

 Qualifying Law Degree

Syllabus

 Introduction to main forms of ADR, their characteristics and factors to take into account in selecting the appropriate process
The Mediation Process
Mediation Practice and procedure
The solicitor’s role and duties in the dispute resolution process, including in relation to mediation confidentiality and privilege
The main features and process of arbitration
Conciliation and Arbitration Act 1996 jurisdiction in arbitration claims
Dispute resolution in the context of civil litigation and in the wider context
Mediation role-play practice

 

Covers all Learning Outcomes

Balance of independent study and scheduled teaching activity

In the course of the tutor led sessions students are provided with guidance on the issues to prepare in readiness for the corresponding student led sessions. The student led sessions are interactive in that students are required to role play realistic scenarios as well as to advise on situations and circumstances in a real life context with regard to substantive and procedural law relating to dispute resolution.

Students are provided with sample mock assessment questions and practice in answering such questions.

Learning outcomes

 At the end of an elective, successful students, under appropriate supervision, should be able in the context of the area of alternative dispute resolution (ADR) to:

1.demonstrate their knowledge and understanding and employ the applicable skills in various types of ADR
2.use the legal knowledge, skills, procedures and behaviours including court rules, legislation and case-law pertaining to ADR, including in relation to procedure and costs  appropriate to each clients’ participating in ADR
3.identify the overall nature of the various methods of ADR , then plan and progress that ADR method through a series of steps and decisions including, where appropriate, drafting documentation
4.identify the client's goals and alternative means of achieving those goals, and deal appropriately with client care
5.investigate and identify the relevant facts, research and identify the relevant  legal issues, and advise the client on the legal consequences of participating in ADR
6.recognise and act within the rules of professional conduct especially those relating to best interests of the client and client care (Chapter 1 of the Solicitors Code of Conduct)
7.identify the client’s reasonable expectations as to quality and timeliness of service

Element 1: Introduction to the various techniques of ADR and the typical context of ADR

Students should be able to:

1.advise on the various forms of ADR  including mediation, conciliation arbitration, and ‘Med-Arb’
2. be aware of the different type of mediation scheme including  multi-party mediation and co-mediation.
3. be able to analyse a litigious dispute and advise on the advantages and disadvantages of the various mediation options
4. be able to advise of the importance of introducing ADR at an appropriate stage and the advantages and disadvantages of entering the process prior to legal proceedings being issued or concurrently with litigation  
5. Understand the roles of ADR in practice both nationally and internationally, including workplace mediation, World Intellectual Property Office and Patent County Court mediation schemes.

Element 2: The Mediation Procedure

Students should be able to:

1.understand the impact of ADR on litigation and ‘take up’ of ADR by the courts
2.advise upon the role of the mediator and mediation in a business context
3.be able to apply relevant court rules, legislation and case-law concerning ADR procedure including the enforceability of ADR clauses and their increasing recognition (Cable & Wireless PLC v IBM UK 2002 EWHC)
4. Advise on the costs implications of ADR e.g. CPR rule 44.3(4).
5.be able to advise on the duty to consider stay of proceedings to attempt ADR (CPR 26.4, Earl of Malmesbury v Strutt & Parker [2008] EWHC 424 (QB), Dunnett v Railtrack [2002] 2 ALL ER 850, Halsey v Milton Keynes General NHS Trust [2004] CA Civ 576
6. be aware of the SRA Code of Practice for civil and commercial mediators
7. advise on settlement in an ADR context

Element 3: Mediation in Practice and Developing Mediation Skills

Students should be able to:

1. conduct and represent a client in a simple mediation
2. practising strategic and emotional values in mediation and responding to emotions in   mediation (the psychology of mediation), passing impasse and dealing with deadlock
3. distinguish interest from issues and achieve commercially workable outcomes
4. undertake effective case and risk analysis
5. communicate and negotiate including distributive bargaining, integrative bargaining and mixed motive exchange
6. use caucuses and different structures for conducting mediation depending upon the circumstances
7. understand how to ‘create value’ within the settlement range and close a mediation
8. draft a durable settlement agreement and advise upon enforceability of a settlement

Assessment strategy

 The assessment is an open book exam with advance disclosure of documents and is of a transactional nature. This form of assessment is designed to replicate practice and enable students to demonstrate the application of legal principles in a realistic, practical context. Students are given a formative assessment and receive examiners' guidance.

Bibliography

 Basic Text

A Practical Approach to Alternative Dispute Resolution by Blake, Browne & Sime, 2nd edition (Oxford University Press)

Online Materials
Supporting WebLearn materials and student study materials.

Electronic Databases
Westlaw and Lexis