Module LAW48515: International Commercial Mediation

Department: Law

LAW48515: International Commercial Mediation

Prerequisites

• None

Corequisites

• None

Excluded Combination of Modules

• None

Aims

• This course involves a study of the various processes available to disputing commercial parties to resolve conflict, with a particular emphasis on the legal and regulatory issues concerning the commercial mediation process.
• The course provides students with a critical analysis of current and contemporary commercial mediation issues in a national and international context.
• As most commercial disputes settle out of court, policy in numerous common law, civil law and ‘mixed’ jurisdictions around the world promotes mediation as an effective means of resolving commercial conflict. Through participation in this course students will acquire knowledge that will provide a useful resource for their future careers, and a critical resource when working in the field of commercial dispute resolution.
• It will assist students’ capacity to apply legal standards to concrete facts e.g., in the drafting of mediated settlement agreements, that will prove essential in legal dispute resolution practice.
• The course will equip students with the necessary skillset to gain expertise in the application of concepts and norms within the field of international commercial mediation and its interaction with arbitration and litigation practice.
• The course will facilitate students to develop moral, ethical and contextual awareness of the salient issues in international commercial mediation.

Content

• The course will cover the following topics:
• Introduction to Commercial Mediation
• Mediation and Conventional Dispute Resolution
• Commercial Mediation in the International Context
• Agreements for Future Mediation
• The Mediation Process
• Mediators and their Appointment
• Judges as Mediators
• Lawyers and Other Professional Mediation Supporters
• The Lawyer’s Role Transition
• Commercial Mediation as a Costs Containment Device
• Mediated Settlement Agreements
• Making the Mediated Settlement Agreement a Judgment or Award
• The UNCITRAL Model Law on International Commercial Mediation, the UNCITRAL Mediation Rules, the Singapore Convention, the EU Mediation Directive and the US Uniform Mediation Act.
• Confidentiality including Approaches to Protecting Mediation Evidence
• Process Controversies
• The Symbiotic Character of the Modern Justice System
• Problem Based Learning Exercise
• New topics might be introduced and some of the current topics might be replaced.

Learning Outcomes

• On completion of the module, students will be able to:
• Demonstrate a detailed understanding of the various options available to disputing parties to resolve commercial conflict.
• Demonstrate an in-depth knowledge of the laws and regulations concerning international commercial mediation.
• Demonstrate a comprehensive understanding of the legal implications of mediation as a mechanism to resolve commercial disputes including the enforcement of agreements to mediate and settlement agreements, the confidentiality of the process, costs sanctions as an instrument to encourage parties to mediate and the legal limits of the process.
• Demonstrate a detailed knowledge of leading international, regional and domestic instruments including the UNCITRAL Model Law on International Commercial Mediation, the UNCITRAL Mediation Rules, the Singapore Convention, the EU Mediation Directive and the US Uniform Mediation Act, and demonstrate a critical understanding of the key areas of each instrument requiring reform.
• Demonstrate a thorough understanding of the pertinent regulatory issues relating to the process including the regulation of both lawyers and mediators within the process.
• Demonstrate an understanding of the different models of mediation that are employed in mediation practice.
• Demonstrate an in-depth knowledge of the controversies that have emanated from the international commercial mediation process, such as concerns relating to substantive fairness, procedural fairness and the public interest, and how such concerns can be resolved.
• Engage with dispute resolution processes in a practical way through an in-class Problem Based Learning (PBL) exercise. Through PBL, students will engage with a commercial dispute similar to the type of dispute experienced in practice, where they will assess the appropriate means of resolution in light of the factual circumstances presented in the case, and outline the possible outcomes should each of the various dispute resolution options be employed.

• On completion of this course students will be able to:
• Identify and use the leading primary and secondary sources relevant to a given legal issue, and be able to use them to reach informed and reasoned conclusions on points of law and regulation.
• Identify the legal issues relevant to a specific problem.
• Analyse and evaluate the existing law in light of the legal, social, political and moral questions raised.
• Interpret and critically analyse the jurisprudence in commercial mediation, make reasoned judgements on the effectiveness of specific laws and international instruments, and the desirability of their reform.
• Engage in an informed debate concerning current proposals for reform.
• Situate current legal controversies relating to commercial mediation in their historical, cultural and international contexts.
• Critically engage with key legal and policy debates both domestically and internationally.

• On completion of this course students will be able to: Critically review existing laws, regulations and practices in relation to specific aspects of international commercial mediation.
• Write a substantial and well-researched piece of work on specific aspects of commercial mediation.
• Develop expertise relating to international commercial mediation in conducting legal research using materials from a variety of national, regional and international sources.
• Describe accurately and coherently the arguments and analysis of academic commentators on international commercial mediation.
• Demonstrate an ability to explore complex issues creatively in writing on matters relating to international commercial mediation. I
• nterpret, critically analyse and synthesise legal materials and literature relevant to international commercial mediation.
• Undertake discovery-enriched independent research.

Modes of Teaching, Learning and Assessment and how these contribute to the learning outcomes of the module

• The teaching will be conducted through seminars. The seminars will impart information and guide students through the material they will have to research and analyse. The discussion-led seminars, supported by substantial but targeted reading assignments, will provide a deeper understanding of the issues.
• Through discussion-led seminars, students will be invited to draw on their existing legal knowledge and engage with domestic, European and international legal materials, as appropriate.
• The relevant learning outcomes will be achieved through:
• Monitoring students’ understanding of the material and providing additional guidance where necessary.
• Enabling students to develop a critical view of the material covered through the formative essay and discussion-led seminars.
• Assessment by essay will develop / demonstrate students’ abilities to undertake independent analytical research utilising a wide range of primary and secondary sources relating to international commercial mediation.
• Feedback on formative and summative assessment to be provided in accordance with Law School feedback policies.

Teaching Methods and Learning Hours

Summative Assessment

Formative Assessment:

One optional essay or problem based question of approximately 1500 words.

■ Attendance at all activities marked with this symbol will be monitored. Students who fail to attend these activities, or to complete the summative or formative assessment specified above, will be subject to the procedures defined in the University's General Regulation V, and may be required to leave the University