LC7026 - Civil and Commercial Mediation and Alternative Dispute Resolution (2017/18)
|Module specification||Module approved to run in 2017/18|
|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|
|Running in 2017/18||
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 or equivalent
This module aims to equip students to act as a trainee solicitor in civil and commercial mediation and Alternative Dispute Resolution.
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
Learning and teaching
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.
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:
- demonstrate their knowledge and understanding and employ the applicable skills in various types of ADR
- 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
- 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
- identify the client's goals and alternative means of achieving those goals, and deal appropriately with client care
- 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
- 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)
- 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:
- advise on the various forms of ADR including mediation, conciliation arbitration, and ‘Med-Arb’
- be aware of the different type of mediation scheme including multi-party mediation and co-mediation.
- be able to analyse a litigious dispute and advise on the advantages and disadvantages of the various mediation options
- 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
- 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:
- understand the impact of ADR on litigation and ‘take up’ of ADR by the courts
- advise upon the role of the mediator and mediation in a business context
- 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)
- Advise on the costs implications of ADR e.g. CPR rule 44.3(4).
- be able to advise on the duty to consider stay of proceedings to attempt ADR (CPR 26.4 , Earl of Malmesbury v Strutt & Parker  EWHC 424 (QB) , Dunnett v Railtrack  2 ALL ER 850, Halsey v Milton Keynes General NHS Trust  CA Civ 576
- be aware of the SRA Code of Practice for civil and commercial mediators
- advise on settlement in an ADR context
Element 3: Mediation in Practice and Developing Mediation Skills
Students should be able to:
- conduct and represent a client in a simple mediation
- practising strategic and emotional values in mediation and responding to emotions in mediation (the psychology of mediation), passing impasse and dealing with deadlock
- distinguish interest from issues and achieve commercially workable outcomes
- Undertake effective case and risk analysis
- communicate and negotiate including distributive bargaining, integrative bargaining and mixed motive exchange
- use caucuses and different structures for conducting mediation depending upon the circumstances
- understand how to ‘create value’ within the settlement range and close a mediation
- draft a durable settlement agreement and advise upon enforceability of a settlement
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.
A Practical Approach to Alternative Dispute Resolution by Blake, Browne & Sime, 2nd edition (Oxford University Press)
Various web links to ADR service providers etc.