Aims

This class is concerned with the resolution of commercial and other civil disputes especially through the means of mediation. Students will be introduced to the process of mediation, the role of the mediator and learn some key skills required in the resolution of disputes by this method.

The class shall also examine the interaction between mediation and the law and legal process, in particular looking at such issues as confidentiality, incentives to mediate, adversarialism and civil justice and the role of judges and lawyers within the process. The class considers recent reviews of civil justice for their impact on mediation, the influence that mediation and settlement have held for civil justice as well as critiques of mediation’s ‘institutionalisation’ from the UK and abroad. This module also examines the development of a mediation profession and explores issues such as training, continuous professional development, accreditation and regulation. Finally the role of the lawyer in mediation from the perspective of dispute forum selector and acting as a party advocate and negotiator in the process is explored.

Outline Of Syllabus

Introduction to Mediation – history, development and main facets of the process
Mediation skills, styles and techniques
Civil Justice – the nature and importance of civil justice; main features of formal justice processes, trends in civil justice reviews, critiques
Mediation and formal civil justice – trends and critiques
Lawyers’ relationship with Mediation – resistance, capture and appropriateness – the role of legal education,
Lawyer advocacy – the role of lawyers in mediation - the new ‘advocacy’ and non-adversarial behaviour
Current themes in mediation and formal civil justice – regulation, ODR, confidentiality, mandatory mediation, enforcing mediated outcomes

Teaching Rationale And Relationship

The principal method of teaching shall be lectures with 18 held over the course of the semester. Some of the lectures are likely to be more interactive than is standard with student led group work undertaken (where class size and facilities permit). The purpose of lectures is to provide students with a solid grounding in specific, relevant concepts, rules and ideas. Learning from what worked well in the pandemic the lectures shall be supplemented by non-synchronous online material including short recorded lectures, videos and podcasts and interactive activities.

The purpose of seminars is to allow students to test and deepen their understanding of particular concepts and ideas and develop their analytical and cognitive skills in the context of the close analysis of specific issues and texts. They also offer an opportunity for detailed discussion of issues covered in the lectures, and for developing and practicing essential legal skills of source synthesis and evidence- and research-based argument, as well as for giving feedback on student progress. In some seminars students will be required to prepare and deliver practical exercises including role plays in the area of mediation and mediation advocacy.

A number of drop in sections shall be made available operating either in person and/or over ZOOM

Put together, the lectures and seminars will encourage an active, integrated approach to study, develop critical thinking and allow for the development of new skills and techniques.

Independent study on this module will include directed reading in advance of lectures, consolidation following lectures, and preparation for seminars. Students in seminars will be expected to critically engage with material in a manner consonant with level 3 study.

Assessment Rationale And Relationship

The class shall be assessed by a combination of different techniques. The exam shall require the students to display a breadth of awareness as well as discuss topics in a critical, analytical manner. The professional skills element shall seek to assess some fundamental techniques as well as appropriate presentational skills in the context of mediation and/or mediation advocacy.