Where modules run over two terms as a 30 credit module, SIL students will attend and be assessed on the contents of term 1. Please note that some modules reflect this with an additional "A" in their module code, but this is not the case for all of them due to special assessment arrangements for SIL students.
All assessments are graded on a pass/fail basis.
ALTERNATIVE DISPUTE RESOLUTION (LAWSG094) Credit value: 30 credits (12 ECTS)
Dr Maria-Federica Moscati
Professor Michael Palmer
Intercollegiate teaching: No
Teaching Method: 20 x two-hour seminars
Who may enrol: LLM students, SIL students, Other UCL Masters students
Practice Assessment: The form of the practice assessment will be confirmed during the first seminar.
Assessment method for Masters students:
50% two-hour unseen written examination
50% coursework essay 3,000 words
Assessment method for SIL students: 3,000 word coursework essay
This module examines the theory and practice of dispute resolution. The module offers a cross-cultural perspective, arguing that innovations in dispute resolution in the common law world over the past four decades or so are best understood in the context of a more general understanding of dispute processes. This knowledge is important for both academic analysis and also because it assists lawyers and others to deal with legal problems more creatively and more successfully.
The module first examines the emergent concern in social science and jurisprudential writing with the nature and significance of disputes, and considers the manner in which traditional approaches have been ‘rediscovered’ and utilised in the refurbishment of civil justice through first the ‘access to justice’ movement and then the ‘ADR’ movement. The module also considers the manner in which disputes are characterised, the diverse views located in the debates that surround disputes, the causes of disputes, and the handling of disputes. It introduces the major theoretical approaches to disputes and their resolution, and examines the decision making processes used in response to disputes. It also considers the ways in which lawyers across a range of jurisdictions now increasingly engage in ADR.
The module explores in depth the various processes of decision-making relied on in attempts to resolve disputes, examining in particular negotiation, mediation, adjudication, and various types of mixed processes, and considers these processes as they are applied in a range of settings (interpersonal, multi-party, organizational, family & community, commercial, and international). In a case study of dispute resolution in China, the ways in which legal cultures shape dispute resolution processes is also offered (in the China case, so as to prioritise mediation). Regulatory issues, especially in relation to mediation, are also explored. By the end of the module, students will have gained an understanding of the theoretical and practical dimensions of dispute resolution, and the groundwork laid for further inquiry into and application of non-adversarial methods and skills in dispute resolution.
The module is divided in five main parts:
Part A: The Development and Nature of ADR
Part B: The Process of Negotiation
Part C: The Process of Mediation
Part D: Umpiring and Mixed Process
Part E: Students' presentation, and Review (this final section of the course aims at improving presentation skills and advising students on revision and exam technique)
The module first explores the Development and Nature of ADR, examining issues of formal and informal justice across a range of settings, and then exploring the manner in which ADR emerged as a reform movement in the late twentieth century, primarily in common law jurisdictions. This emergence, however, has been subject to considerable debate, and the nature and substance of these varying views, as well as the response of lawyers and other legal specialists hitherto embedded in an entrenched culture of litigation and adjudication, are examined in some depth. After examining the nature of ‘disputes’ and the manner in which disputes emerge, the module then surveys the range of dispute resolution decision-making possibilities typically found in most jurisdictions as a prelude to detailed examination of the key modes of dispute resolution ordinarily used: negotiation, mediation, and umpiring (including arbitration). Particular attention will be given to mediation, as this has been the core ADR development in many jurisdictions since the late twentieth century for dealing with commercial and civil disputes. The role of mediation in a variety of contexts (including family, and commercial at national and international level), and the manner in which the practice of mediation is increasingly regulated, will be considered. Mediation also often forms a key element in innovative ‘mixed processes’ which represent inventive approaches to dispute resolution based on a fusion of one of more primary processes. In the final substantive section of the course, much attention will be given to the manner in which courts are increasingly influenced by ADR, and to exploring the place of arbitration in the world of ADR.
A detailed reading list for each topic will be supplied during the course. Handouts and reading material will be provided electronically.
Roberts and Palmer, (2005) Dispute Processes: ADR and the Primary Forms of Decision Making, Cambridge: CUP
Fuller, LL, "Forms and Limits of Adjudication" in The Harvard Law Review Vol 92, No 2, December 1978.
Felstiner, Abel, Sarat, "The Emergence and Transformation of Disputes: Naming, Blaiming, Claiming." in Law and Society Review, Vol 15, No 3/4 1980 - 1981.
Galanter, "Access to Justice in a World of Expanding Social Capability." Fordham Urban Law Journal, Vol 37, Issue 1, 2010.
All articles can be accessed online via www.heinonline.org with UCL username and password.
Other information: N/A
Prizes for this module: There are currently no prizes available for this module.