Athabasca University LGST 489 (Rev C2)

Alternative Dispute Resolution

Detailed Syllabus and Assessment Information

Unit 1

Unit 1 sets the stage for a detailed look at dispute resolution by introducing the major models for

understanding conflict and its consequences Conflict can be understood as the basis of disputes

and claims Therefore this unit examines different theories of how we view and react to conflict

how conflict is transformed into disputes and legal claims and how we try to resolve conflict in

whatever form it takes The major focus is on determining how the legal system currently

understands and attempts to resolve conflicts that have been transformed into lawsuits which

then provides the basis for a comparison with ldquoalternativerdquo processes

Learning Objectives

When you have completed Unit 1 you should be able to achieve the following learning

objectives

1 Identify and discuss various ways of perceiving and understanding conflict

2 Describe how culture and gender differences affect our understanding of and reaction to

conflict

3 Discuss the course of conflict from escalation to de-escalation and resolution

4 Describe the Canadian legal systemrsquos current view of conflict that has taken the form of a

lawsuit

Required Readings

Brahm Eric Conflict Stages Beyond Intractability Eds Guy Burgess and Heidi Burgess

Conflict Information Consortium University of Colorado Boulder Posted September 2003

lthttpwwwbeyondintractabilityorgessayconflict-stagesgt

Book Summary of Social Conflict Escalation Stalemate and Settlement by Dean G Pruitt and

Jeffrey Z Rubin Beyond Intractabilityorg

Felstiner William L F Abel Richard L amp Sarat Austin (1980-81) The Emergence and

Transformation of Disputes Naming Blaming Claiming Law amp Society Review 15 631-

654

Menkel-Meadow Carrie (2012) Women in Dispute Resolution Parties Lawyers and Dispute

Resolvers What Difference Does lsquoGender Differencersquo Make Dispute Resolution Magazine

Vol 18 No 3 4-10

Optional Readings

Book Summary of The Handbook of Conflict Resolution Theory and Practice by Morton

Deutsch and Peter T Coleman eds Beyond Intractabilityorg

Book Summary of Intractable Conflicts and their Transformations by Louis Kriesberg Terrell

Northrup and Stuart Thorson eds New York Syracuse University Press 1989 249 pp Beyond

Intractabilityorg

Book Summary of Preparing for Peace Conflict Transformation Across Cultures by John Paul

Lederach Syracuse New York Syracuse University Press 1995 by Tanya Glaser

Hauss Charles (Chip) (2003) Interpersonal Conflict and Violence Beyond Intractability Eds

Guy Burgess and Heidi Burgess Conflict Information Consortium University of Colorado

Boulder Posted August 2003 lthttpwwwbeyondintractabilityorgessayinterpersonal-

violencegt

Kirby Justine (1997) Would a Principled Negotiation Have Saved Eve A Feminist Analysis

of Getting to Yes Otago Law Review 9 122ndash143

LeBaron Michelle (2003) Culture-Based Negotiation Styles Beyond Intractability Eds Guy

Burgess and Heidi Burgess Conflict Information Consortium University of Colorado Boulder

Posted July 2003 lthttpwwwbeyondintractabilityorgessayculture-negotiationgt

Menkel-Meadow (1985) The Transformation of Disputes by Lawyers What the Dispute

Paradigm Does and Does Not Tell Us Journal of Dispute Resolution 1985 25ndash44

Riskin L (1982) Mediation and lawyers Ohio State Law Journal 43 29ndash60

Rubinson Robert (2011) Mapping the World Facts and Meaning In Adjudication and

Mediation Maine Law Review 63 61ndash87

Silbey Susan S amp Merry Sally Engle (1984) What Do Plaintiffs Want Reexamining the

Concept of Dispute Justice System Journal 9 151ndash178

Wehr Paul Conflict Mapping Beyond Intractability Eds Guy Burgess and Heidi Burgess

Conflict Information Consortium University of Colorado Boulder Posted September 2006

lthttpwwwbeyondintractabilityorgessayconflict-mappinggt

Unit 2

Unit 2 provides a general introduction to alternative dispute resolution the attempt to define

ADR its historical background its current resurgence and why it is gaining popularity This unit

introduces the most popular forms and uses of ADR with a particular focus on its use in several

professions An ongoing topic of the course is also introduced in Unit 2 namely the use of ADR

methods versus traditional methods of dispute resolution

Learning Objectives

When you have completed Unit 2 you should be able to achieve the following learning

objectives

1 Define ADRrsquos different forms (eg mediation negotiation neutral evaluation)

2 Describe some of the ideas and theories that have contributed to the emergence of ADR

3 Explain the purposes and uses of ADR

4 Compare and reconcile the use of ADR in relation to more traditional forms of dispute

resolution particularly within the legal system

5 Describe how ADR is being incorporated into lawyering policing and other professional

practices

Required Readings

Menkel-Meadow Carrie (2000) Mothers and Fathers of Invention The Intellectual Founders of

ADR Ohio State Journal on Dispute Resolution 16 1ndash37

Morris Catherine ldquoDefinitions in the Field of Conflict Transformationrdquo

Optional Readings

Feinberg Kenneth (2009) Reexamining the Arguments in Owen M Fiss Against Settlement

Fordham Law Review 78(3) 1171-1176

Fiss O (1984) Against settlement Yale Law Journal 93 1073ndash1089

Fiss O (2009) The history of an idea Fordham Law Review 78(3) 1273-1280

Twining W (1993) Alternative to what Theories of litigation procedure and dispute

settlement in Anglo-American jurisprudence Some neglected classics The Modern Law Review

56 380ndash392

Unit 3

Unit 3 begins the discussion on negotiation by providing a broad definition of negotiation and

describing various types of negotiation It also explores the essence of negotiation and the

principles behind it As you read this unit examine your own style of negotiating Do you

negotiate to get as much as possible for yourself or do you sacrifice for the happiness of others

Do you want everyone to get an equal share or do you want everyone to get the most possible

Learning Objectives

When you have completed Unit 3 you should be able to achieve the following learning

objectives

1 Define ldquonegotiationrdquo in general

2 Define and compare ldquointegrativerdquo (win-win) ldquodistributiverdquo (win-lose) and ldquoprincipledrdquo

negotiation

3 Describe and discuss the theories behind the different types of negotiations

4 Analyze negotiation structure and dynamics using the concepts of aspiration goal

reserve level settlement zone and BATNA

Required Readings

Alfredson Tanya and Cungu Azeta Negotiation Theory Foundation and Approaches in

Negotiation Theory and Practice A Review of the Literature EASYPol online resources for

Policy Making Food and Agriculture Organization of the United Nations pages 6-17

httpwwwfaoorgdocsupeasypol5504-5_negotiation_background_paper_179enpdf

Spangler Brad Best Alternative to a Negotiated Agreement (BATNA) Beyond

Intractability Eds Guy Burgess and Heidi Burgess Conflict Information Consortium

University of Colorado Boulder Posted June 2003

lthttpwwwbeyondintractabilityorgessaybatnagt

Spangler Brad Competitive and Cooperative Approaches to Conflict Beyond Intractability

Eds Guy Burgess and Heidi Burgess Conflict Information Consortium University of Colorado

Boulder Posted July 2003 lthttpwwwbeyondintractabilityorgessaycompetitive-cooperative-

framesgt

Spangler Brad Distributive Bargaining Beyond Intractability Eds Guy Burgess and Heidi

Burgess Conflict Information Consortium University of Colorado Boulder Posted June 2003

lthttpwwwbeyondintractabilityorgessaydistributive-bargaininggt

Spangler Brad Integrative or Interest-Based Bargaining Beyond Intractability Eds Guy

Burgess and Heidi Burgess Conflict Information Consortium University of Colorado Boulder

Posted June 2003 lthttpwwwbeyondintractabilityorgessayinterest-based-bargaininggt

Spangler Brad Zone of Possible Agreement (ZOPA) Beyond Intractability Eds Guy Burgess

and Heidi Burgess Conflict Information Consortium University of Colorado Boulder Posted

June 2003 lthttpwwwbeyondintractabilityorgessayzopagt

Optional Readings

Cohen Jonathan R (2016) A Genesis of conflict The zero-sum mindset University of Florida

Law Faculty Publication

Lande John (2009) Learning from ldquocooperativerdquo negotiators in Wisconsin Dispute Resolution

Magazine 15 20ndash23

Lande John (2014) A framework for advancing negotiation theory Implications from a study

of how lawyers reach agreement in pretrial negotiation Cardozo Journal of Conflict Resolution

16 1-62

Lax David A amp Sebenius James K (1986) The manager as negotiator Bargaining for

cooperation and competitive gain New York The Free Press (Summary ldquoThe Negotiators

Dilemma Creating and Claiming Valuerdquo)

Massachusetts Institute of Technology ldquoNegotiation and Conflict Managementrdquo (Open Access

Course)

Menkel-Meadow Carrie (2004) From legal disputes to conflict resolution and human problem

solving Legal dispute resolution in a multidisciplinary context Journal of Legal Education 54

7-29

ldquoNegotiationrdquo (YouTube video)

Smith M Shane Game Theory Beyond Intractability Eds Guy Burgess and Heidi Burgess

Conflict Information Consortium University of Colorado Boulder Posted August 2003

lthttpwwwbeyondintractabilityorgessayprisoners-dilemmagt

ldquoWilliam Ury The walk from lsquonorsquo to lsquoyesrsquordquo (YouTube video)

Unit 4

Unit 4 introduces skills and techniques used in negotiation It addresses the steps required in

preparing for negotiation skills used in negotiation itself and the qualifications of a ldquogoodrdquo

negotiator Unit 4 describes how to gain and use power to negotiate onersquos goals and provides

examples to evaluate your own negotiating skills

Learning Objectives

When you have completed Unit 4 you should be able to achieve the following learning

objectives

1 Describe the steps in preparing for negotiation and explain why they are important

2 Describe the skills needed in negotiation and start to practise them

3 Identify and explain the sources of power available in negotiation

4 Explain the concepts of positions and interests in negotiation theory

5 Describe various kinds of negotiation formats and the ldquotyperdquo of negotiator required for

each

Required Readings

Alfredson Tanya and Cungu Azeta Practical Steps to Integrative Bargaining The Seven

Elements of Principled Negotiation in Negotiation Theory and Practice A Review of the

Literature EASYPol online resources for Policy Making Food and Agriculture Organization of

the United Nations pages 18-25 httpwwwfaoorgdocsupeasypol5504-

5_negotiation_background_paper_179enpdf

Dugan Maacuteire A Power Beyond Intractability Eds Guy Burgess and Heidi Burgess Conflict

Information Consortium University of Colorado Boulder Posted June 2003

lthttpwwwbeyondintractabilityorgessaypowergt

Ebner Noam (2014) Analytical preparation for negotiation A checklist Creighton University

School of Law - Werner Institute for Negotiation and Dispute Resolution

Maiese Michelle Interests Positions Needs and Values Beyond Intractability Eds Guy

Burgess and Heidi Burgess Conflict Information Consortium University of Colorado Boulder

Posted August 2004 lthttpwwwbeyondintractabilityorgessayinterestsgt

Optional Readings

Condlin Robert (2016) The ldquonaturerdquo of legal dispute bargaining University of Maryland Legal

Studies Research Paper

Dobrijevie Gordana Negotiation and Power

(wwwsingipediacomattachmentphpattachmentid=1651ampd)

Ebner Noam (2016) Negotiation Mediation and Conflict Resolution Channel (YouTube)

Fox Kenneth H (2010) Negotiation as a post-modern process Hamline Journal of Public Law

amp Policy 31 367ndash384

Performing Artist Contract Negotiation ndash Competitive Style (Video) (Source

httpwwwadrvideoorg )

Performing Artist Contract Negotiation ndash Cooperative Style (Video) (Source

httpwwwadrvideoorg )

Sebenius James K (2014) Better deals through level II strategies Advance your interests by

helping to solve their internal problems Harvard Business School Working Paper

Schneider Andrea Kupfer et al (2014) Cooking up a deal Negotiation recipes for success

Marquette Law School Legal Studies Paper No 14-10 UC Irvine School of Law Research Paper

No 2014-27

Spangler Brad Option Identification Beyond Intractability Eds Guy Burgess and Heidi

Burgess Conflict Information Consortium University of Colorado Boulder Posted January

2004 lthttpwwwbeyondintractabilityorgessayoption-identificationgt

Unit 5

Unit 5 explores the use of negotiation skills in specific contexts including within police work

involving crisis negotiations This unit also examines concerns and issues pertaining to how

negotiations may be practised differentlymdashor whether they work at allmdashwithin intercultural

situations or for women Do negotiations sometimes fail because in our society our underlying

ideologies make wrong assumptions and judgments about gender and culture For example do

paternalistic or racist ideologies affect how gender and cultural minority issues are examined (or

ignored) in negotiation contexts

Learning Objectives

When you have completed Unit 5 you should be able to achieve the following learning

objectives

1 Describe ways in which negotiations are used in real-life situations

2 Explain the use of negotiation skills in resolving a crisis situation

3 Describe how negotiation skills and styles may differ according to gender and culture

4 Identify and explain the kinds of ideologies that may contribute to confusion and biases

in negotiations

5 Identify and explain the systemic inequities that create difficulties for women and cultural

minorities

6 Describe some ways of considering gender and cultural differences and inequities in a

negotiation

7 Identify and explain the ethical requirements of a negotiator

Required Readings

Adair Wendi L amp Brett Jeanne M (2005) The negotiation dance Time culture and

behavioral sequences in negotiation Organization Science 16 33ndash51 (Source authorrsquos

homepage at University of Waterloo - httpsuwaterloocapsychologypeople-profileswendi-

adair)

Kirby J (1997) Would Principled Negotiation Have Saved Eve A Feminist Analysis of

Getting to YES Otago Law Review 9 122ndash143

LeBaron Michelle (2003) Culture-Based Negotiation Styles Beyond Intractability Eds Guy

Burgess and Heidi Burgess Conflict Information Consortium University of Colorado Boulder

Posted July 2003 lthttpwwwbeyondintractabilityorgessayculture-negotiationgt

Milo-Locker Shiri (2004) ldquoThe decision to settle ndash balance setoffs and tradeoffs between

rational emotional and psychological forcesrdquo Mediatecom

Optional Readings

Ayres Ian (1991) Fair driving Gender and race discrimination in retail car negotiations

Harvard Law Review 104(4) 817-872

Burgess Heidi (2013) Active Listening Beyond Intractability Eds Guy Burgess and Heidi

Burgess Conflict Information Consortium University of Colorado Boulder

lthttpwwwbeyondintractabilityorgcoreknowledgeactive-listeninggt

Hammer Mitchell (2008) The SAFE Model of Negotiating Critical Incidents

Johnson Julia (2014) Gender differences in negotiation Implications for the workplace Duke

University School of Law

Kennedy J F (1961) Inaugural address Inauguration of John F Kennedy January 20 1961

Retrieved November 30 2011 from httpwwwhpolorgjfkinaugural

Kray Laura amp Thompson Leigh (2005) Gender stereotypes and negotiation performance An

examination of theory and research Research in Organizational Behavior 26 103-182

(source httpfacultybiohaasberkeleyedufaculty-listkray-laura )

Pearson L B (1957) ldquoThe four faces of peacerdquo The Honourable Lester Bowles Pearsonrsquos

acceptance speech upon presentation of the Nobel Peace Prize in 1957 Retrieved November 30

2011 from httpwwwunacorgenlink_learncanadapearsonspeechnobelasp

Queen v Cognos Inc [1993] 1 SCR 87

Wang Lu-in (2010) Negotiating the situation The reasonable person in context Lewis amp Clark

Law Review 14 1285-1311

White James J (1980) Machiavelli and the bar Ethical limitations on lying in negotiation Law

amp Social Inquiry 5 926ndash938

Unit 6

Unit 6 begins with an attempt to define ldquomediationrdquo in its various forms styles and strategies by

pointing out the commonalities among these elements This unit discusses the role of the

mediator the requirement to be neutral and other critical issues in mediation Unit 6 also

discusses the principles behind the use of mediation in the legal system and why mediation is

considered an ldquoalternativerdquo

Learning Objectives

When you have completed Unit 6 you should be able to achieve the following learning

objectives

1 Define ldquomediationrdquo and describe its role in the legal system

2 Describe the role of the mediator and some of the skills required for acting in that role

3 Explain the difference between mediation and negotiation

4 Discuss the possible effects of mediation on the Canadian legal system and on our views

of justice

5 Explain how a mediator views conflict

6 Identify and describe various mediation models and mediatorsrsquo styles

7 Describe how the mediatorrsquos style affects mediation

8 Identify and explain some critical issues in mediation

9 Identify and describe the sources of power in a mediator

10 Identify and describe the forms of power that need to be monitored in mediation

Required Readings

Alexander Nadja (2011) The Mediation Meta-Model - the realities of mediation practice ADR

Bulletin Vol 12 No 6 Article 5

Maiese Michelle Neutrality Beyond Intractability Eds Guy Burgess and Heidi Burgess

Conflict Information Consortium University of Colorado Boulder Posted June 2005

httpwwwbeyondintractabilityorgbi-essayneutrality

Riskin Leonard L (2003) Decision-making in mediation The new old grid and the new new

grid system Notre Dame Law Review 79 1ndash53

Spangler Brad Problem-Solving Mediation Beyond Intractability Eds Guy Burgess and

Heidi Burgess Conflict Information Consortium University of Colorado Boulder Posted

September 2003 httpwwwbeyondintractabilityorgbi-essayproblem-solving-mediation

Spangler Brad Transformative Mediation Beyond Intractability Eds Guy Burgess and Heidi

Burgess Conflict Information Consortium University of Colorado Boulder Posted October

2003 httpwwwbeyondintractabilityorgessaytransformative-mediation

Optional Readings

Alfini James J (1991) Trashing bashing and hashing it out Is this the end of ldquogood

mediationrdquo Florida State Law Review 19 47-75

Glaser Tanya (2016) Summary of Christopher Moore The Mediation Process Practical

Strategies for Resolving Conflict (3rd ed 2004) San Francisco Jossey-Bass Publishers

Menkel-Meadow Carrie (2015) Mediation Arbitration and Alternative Dispute Resolution

(ADR) International Encyclopedia of the Social and Behavioral Sciences Elsevier Ltd 2015

UC Irvine School of Law Research Paper No 2015-59

Morris C (1997) The trusted mediator In J Macfarlane (Ed) Rethinking disputes The

mediation alternative Toronto Emond Montgomery

Shapira Omer (2009) Exploring the concept of power in mediation Mediatorsrsquo sources of

power and influence tactics Ohio State Journal on Dispute Resolution 24 535-568

Silbey Susan S amp Merry Sally E (1986) Mediator settlement strategies Law amp Policy 8 7ndash

32 (source httpwebmitedussilbeywwwpubhtml)

Smyth Gemma (2009) Strengthening social justice in informal dispute resolution processes

through cultural competence Windsor Yearbook of Access to Justice 27 111ndash126

Unit 7

The primary focus of Unit 7 is on the mediation process and mediation skills This unit outlines

guidelines for conducting a mediation and the steps to be taken in preparing for and performing

dispute resolution It also provides tips for efficient and effective mediation and describes the

skills required to mediate a dispute

Learning Objectives

When you have completed Unit 7 you should be able to achieve the following learning

objectives

1 Describe a process for facilitative mediation

2 Identify some common steps found in the mediation process

3 Describe required skills to be used by a mediator

4 Perform listening and questioning skills used by a mediator

5 Explain and critique the use of caucuses in mediation

Required Readings

Kaufman Sanda Michael Elliott and Deborah Shmueli Frames Framing and Reframing

Beyond Intractability Eds Guy Burgess and Heidi Burgess Conflict Information Consortium

University of Colorado Boulder Posted September 2003

lthttpwwwbeyondintractabilityorgessayframinggt

Maiese Michelle Emotions Beyond Intractability Eds Guy Burgess and Heidi Burgess

Conflict Information Consortium University of Colorado Boulder Posted July 2005

lthttpwwwbeyondintractabilityorgessayemotiongt

Maiese Michelle Ground Rules Beyond Intractability Eds Guy Burgess and Heidi Burgess

Conflict Information Consortium University of Colorado Boulder Posted September 2004

lthttpwwwbeyondintractabilityorgessayground-rulesgt

Salem Richard Empathic Listening Beyond Intractability Eds Guy Burgess and Heidi

Burgess Conflict Information Consortium University of Colorado Boulder Posted July 2003

lthttpwwwbeyondintractabilityorgessayempathic-listeninggt

Spangler Brad Caucus Beyond Intractability Eds Guy Burgess and Heidi Burgess Conflict

Information Consortium University of Colorado Boulder Posted June 2003

lthttpwwwbeyondintractabilityorgessaycaucusgt

Optional Readings

Cleveland Mediation Center (Producer) (2010) Community mediation demosmdashOpening

statement [video] Cleveland OH Author Retrieved November 30 2011 from

httpwwwyoutubecomwatchv=Y1ABs7QfMYo

CommunityMediation (2016) Mediator Training Clip 1 - Agenda - Language amp Interruptions

[video] Retrieved July 12 2016 from httpswwwyoutubecomwatchv=X-mrHWhWIXA

Noesner G W and Mike Webster (1997) Crisis intervention using active listening skills in

negotiations FBI Law Enforcement Bulletin 66 13ndash19

Unit 8

Unit 8 examines the use of mediation in several areas including family disputes where it is now

common criminal matters and public policy and administrative proceedings This unit also

discusses issues of race culture and gender with respect to their possible effects on the

mediation process Finally Unit 8 outlines the ethical requirements of the mediator

Learning Objectives

When you have completed Unit 8 you should be able to achieve the following learning

objectives

1 Describe various ways in which mediation is used in real-life situations

2 Describe in detail the use of mediation and the required process for mediation in family

disputes and in juvenile crime situations

3 Explain how mediation may be affected by and how it can be altered to accommodate

issues of gender and culture

4 Outline the ethical requirements of a mediator

5 Identify the ethical issues in victim-offender mediation (VOM)

6 List and explain the principles of consensus-building decision making

7 Describe the impact of culture in mediation

Required Readings

Hallevy Prof Gabriel (2011) Therapeutic victim-offender mediation within the criminal justice

process ndash Sharpening the evaluation of personal potential for rehabilitation while righting

wrongs under the alternative-dispute-resolution (ADR) philosophy Harvard Negotiation Law

Review 16 65-94 Available at SSRN httpssrncomabstract=2693515

Lande John (2012) The revolution in family law dispute resolution Journal of the American

Academy of Matrimonial Lawyers 24 411-449 University of Missouri School of Law Legal

Studies Research Paper No 2012-10 Available at SSRN httpssrncomabstract=2035605

Menkel-Meadow Carrie (2011) Mediating multiculturally Culture and the ethical mediator In

Mediation ethics Cases amp Commentaries 305-338 Ellen Waldman ed San Francisco CA

Jossey-Bass 2011 UC Irvine School of Law Research Paper No 2012-28 Georgetown Public

Law Research Paper No 12-061

Umbreit Mark (2009) Restorative justice victim offender mediation overview (YouTube

video)

Optional Readings

ADR Institute of Canada Inc (2011) Code of Ethics and Code of Conduct for Mediators

Toronto ON Author

Bush RA Baruch (1994) Symposium The dilemmas of mediation practice ldquoA study of

ethical dilemmas and policy implicationsrdquo Journal of dispute resolution 1994(1) 1-56

Cormick G Dale N Emond P Sigurdson SG amp Stuart B (1996) Building consensus for

a sustainable future Putting principles into practice Ottawa Government of Canada (source

httppublicationsgccasitearchivee-

archivedhtmlurl=httppublicationsgccacollectionscollection_2016trnee-nrteeEn133-10-1-

1996-engpdf)

Gallagher Lora Elizabeth (2013) Detour ahead Victim-offender mediation as a mandatory

deviation program for juveniles University of Mississippi School of Law

Kahane David (2003) Dispute resolution and the politics of cultural generalization Negotiation

Journal 19 5ndash27

MacDonald J (Producer) amp Dickie B (Director) (2000) Hollow Water [Motion picture]

National Film Board of Canada

MacDonald J (Producer) amp Konowal C (Director) (1997) A Glimmer of Hope [Motion

picture] National Film Board of Canada

Macfarlane J (2003) Transforming relationships through participatory justice Ottawa Law

Commission of Canada Retrieved November 30 2011 from httpdsp-

psdpwgscgccaCollectionJL2-22-2003Epdf

Macfarlane J (2005) The emerging phenomenon of collaborative family law (CFL) A

qualitative study of CFL cases Ottawa Justice Canada

Native Womenrsquos Association of Canada (2007) Aboriginal women and the legal justice system

in Canada Issue Paper Corner Brook NL Author Retrieved November 30 2011 from

httpwwwlaagovnlcalaanawspdfnwac-legalpdf

OVC Bulletin 2000 (rev 2007) A Description of Victim-Offender Mediation Washington DC

Author Retrieved November 30 2011 from

httpswwwncjrsgovovc_archivesreportsrjbulletin1rjmc_2html

Umbreit Mark S Wilson Sheryl amp Warner Roberts Ann (2006) ldquoRestorative Justice for

Victims Offenders and Communityrdquo (PPT) (source

httpwwwcehdumnedusswRJPProjectsVictim-Offender-

DialogueRJ_Principlesdefaultasp)

Umbreit Mark S Coates R B amp Vos Betty (2001) Victim Impact of Restorative Justice

Conferencing with Juveniles What We Have Learned From Two Decades of Victim-Offender

Dialogue Through Mediation and Conferencing (source

httpwwwcehdumnedusswRJPProjectsVictim-Offender-

DialogueRestorative_Group_Conferencingdefaultasp)

United Nations Economic and Social Council (2002) Basic principles on the use of restorative

justice programmes in criminal matters Resolution 200212 Retrieved November 30 2011

from httpwwwunorgenecosocdocs2002resolution202002-12pdf

Unit 9

Unit 9 introduces new more creative processes that have been tailored to meet the unique needs

of participants the particular circumstances of disputes and the specific obstacles presented The

primary focus is on ADR processes that involve a third-party neutral evaluator such as the mini-

trial and judicial settlement conferences and the use of an ombudsperson This unit defines the

role of a neutral evaluator and describes the process used in each method considered

Learning Objectives

When you have completed Unit 9 you should be able to achieve the following learning

objectives

1 Describe some hybrid ADR processes currently available

2 Describe the role and identify the qualities of a neutral evaluator

3 Describe the different processes used in each of the various hybrid models

4 Describe the role of an ombudsperson and identify some elements of the processes used

by an ombudsperson

Required Readings

Elliott David C (1995) Medarb Fraught with danger or ripe with opportunity Alberta Law

Review 34 163-179 (source httpwwwdavidelliottcadisputeresolutionhtm)

Rowe Mary (1991) The ombudsmanrsquos role in a dispute resolution system Negotiation journal

7(4) 353-361 (source httpmrowescriptsmiteduPublicationshtml)

Wittmann Neil C (2015) Judicial dispute resolution in the Court of Queenrsquos Bench Making

resolution accessible Canadian arbitration and mediation journal 25(1) 14-20 (source

httpadriccaresourcesjournal-articles)

Optional Readings

Agrios John A amp Agrios Janice A (2004) A handbook on judicial dispute resolution for

Canadian lawyers Canadian Forum on Civil Justice (source httpwwwcfcj-

fcjcorgclearinghousejudicial-dispute-resolution )

Alberta Law Reform Institute (1993) Civil litigation The judicial mini-trial Dispute Resolution

ndash Special Series Discussion Paper No 1 (source

httpswwwalriualbertacaindexphppublicationsLawadministration-of-justicealternate-

dispute-resolutioncivil-litigation-the-judicial-mini-trial- )

Creutzfeldt Naomi J and Bradford Ben (2015) Dispute resolution outside of courts Procedural

justice and decision acceptance among users of ombuds services in the UK Law amp Society

Review 50(4) Forthcoming Available at SSRN httpssrncomabstract=2805917

ldquoThe Mini-Trialrdquo (2016) Department of Justice Canada

Rooke John D (2009) Improving excellence Evaluation of the judicial dispute resolution

program in the Court of Queenrsquos Bench of Alberta Canadian Forum on Civil Justice (source

httpwwwcfcj-fcjcorgclearinghousejudicial-dispute-resolution )

Rowe Mary P (2009) An organizational ombuds office in a system for dealing with conflict

and learning from conflict or ldquoconflict management systemrdquo Harvard Negotiation Law Review

14 279-288 (source httpwwwhnlrorgarticlesarchive)

Semple Noel (2011) Judicial settlement-seeking in parenting disputes Consensus and

controversy Conflict Resolution Quarterly 29 No 3 309-332 Available at SSRN

httpssrncomabstract=1687268

Unit 10

This unit provides some background to the practice of resolving disputes using the technology of

the Internet It surveys some of the current methods of online dispute resolution (ODR) and

raises issues regarding its advantages and disadvantages

Learning Objectives

When you have completed Unit 10 you should be able to achieve the following learning

objectives

1 Describe what is meant by online dispute resolution

2 Identify and describe some of the current types and methods of ODR in use

3 Identify and explain some advantages and disadvantages of ODR

Required Reading

Brannigan Colm (2008) Online dispute resolution In CCH alternative dispute resolution

practice manual (source httpmediatecaOnline-Dispute-Resolutionhtml)

Brett Jeanne M Olekalns Mara Friedman Ray Goates Nathan Anderson Cameron Lisco

Cara Cherry (2007) Sticks and stones language face and online dispute resolution Academy

of Management Journal 50(1) 85-99

Ebner N (2014) Negotiation via the (new) email In M Benoliel (Ed) Negotiation excellence

Successful deal making (2nd ed) Singapore World Scientific Publishing

Ebner N amp Zeleznikow J (2015) Fairness trust and security in online dispute resolution

Hamline Journal of Public Law and Policy 36(2) 143-160

Optional Readings

Brannigan Colm (2016) Online dispute resolution The tools of the future for mediators

arbitrators and lawyers are here today ADR Perspectives May 2016 (source

httpadriccaresourcesadr-perspectives-newsletter)

Civil Justice Council United Kingdom (2015) Online dispute resolution for low value civil

claims

Conference on Online Dispute Resolution (2013) Presentations and Papers Stanford Law

School

Civil Resolution Tribunal British Columbia (2016) ldquoCRT Overviewrdquo

European Commission ldquoAlternative and Online Dispute Resolution (ADRODR)rdquo

Goodman Joseph W (2003) The pros and cons of online dispute resolution An assessment of

cyber-mediation websites Duke Law amp Technology Review 2 1-16

International Journal of Online Dispute Resolution

Menkel-Meadow Carrie (2016) Is ODR ADR Reflections of an ADR founder from the 15th

ODR conference Law Technology and Access to Justice

National Center for Technology and Dispute Resolution (2016) httpwwwodrinfo

Thompson Darin (2015) Creating new pathways to justice using simple artificial intelligence

and online dispute resolution International Journal of Online Dispute Resolution 2(1) 4-53

United Nations Commission on International Trade Law (2016) ldquoOnline Dispute Resolution

On-Line Resourcesrdquo

Virtual Mediation Lab

Unit 11

Unit 11 focuses on what has been learned about the design of suitable ADR processes and

systems It also explores the issue of how to evaluate the success of ADR initiatives and how to

determine which ADR method is appropriate in a given dispute and its context Within the

discussion of the pros and cons of ADR issues of culture and gender are again raised with the

concern about whether a process can be designed to accommodate everyone You will find

yourself needing to answer the question of whether alternative dispute resolution is a good

alternative

Learning Objectives

When you have completed Unit 11 you should be able to achieve the following learning

objectives

1 Identify and describe the elements to be considered in designing an appropriate dispute

resolution process

2 Describe specific problems and concerns relating to culture and gender in attempts to

design appropriate dispute resolution processes

3 Describe some methods of evaluating dispute resolution processes and systems

4 Describe some measures of the effectiveness of alternative dispute resolution processes

and their effects on the legal system

Required Reading

Amsler (formerly Bingham) Lisa Blomgren (2009) Designing justice Legal institutions and

other systems for managing conflict Ohio State Journal on Dispute Resolution Forthcoming

Available at SSRN httpssrncomabstract=1294063

Brahm Eric and Julian Ouellet Designing New Dispute Resolution Systems Beyond

Intractability Eds Guy Burgess and Heidi Burgess Conflict Information Consortium

University of Colorado Boulder Posted September 2003

lthttpwwwbeyondintractabilityorgessaydesigning-dispute-systemsgt

British Columbia Ministry of Attorney General (2016) Reaching resolution A guide to

designing public sector dispute resolution systems Victoria Ministry of Attorney General

Optional Readings

Baruch Bush Robert A (1989) Defining quality in dispute resolution Taxonomies and anti-

taxonomies of quality arguments Denver University Law Review 66 335ndash380

Galanter Marc amp Cahill Mia (1994) ldquoMost cases settlerdquo Judicial promotion and regulation of

settlements Stanford Law Review 46(6) 1339-1391

Greenberg Elayne E (2015) Fitting the forum to the pernicious fuss A dispute resolution

design to address implicit bias and lsquoisms in the workplace St Johnrsquos School of Law Legal

Studies Research Paper Series

Kelman Herbert C (2005) Building trust among enemies The central challenge for

international conflict resolution International Journal of Intercultural Relations 29 639-650

(source httpscholarharvardedusearchsitekelman)

Menkel-Meadow Carrie (2009) Are there systemic ethics issues in dispute system design And

what we should [not] do about it Lessons from international and domestic fronts Harvard

Negotiation Law Review 14 195-231

Rabinovich-Einy Orna amp Katsh Ethan (2012) Technology and the future of dispute systems

design Harvard Negotiation Law Review 17 151ndash199 (source

httpwwwhnlrorgarticlesarchive)

Reuben Richard C (2005) Democracy and dispute resolution Systems design and the new

workplace Harvard Negotiation Law Review 14 1ndash342

Rolph Elizabeth amp Moller Erik (1995) Evaluating agency alternative dispute resolution

programs A usersrsquo guide to data collection and use Santa Monica CA Rand Corporation

Rowe Mary (2001) Designing integrated conflict management systems Guidelines for

practitioners and decision makers in organizations Cornell University Institute on Conflict

Resolution

Silbey Susan S amp Merry Sally Engle (1984) What Do Plaintiffs Want Reexamining the

Concept of Dispute Justice System Journal 9 151-178

United States Postal Service ldquoRedressrdquo

Various (2009) Dispute System Design Issue of Harvard Negotiation Law Review 14 1ndash342

Unit 12

Unit 12 considers the current trends of ADR in Canada and elsewhere and where it appears to be

headed in the foreseeable future This final unit also suggests ideas about the future effects of

ADR on the legal system on justice and on society

Learning Objectives

When you have completed Unit 12 you should be able to achieve the following learning

objectives

1 Describe some current and future trends in ADR

2 Explain how the Canadian legal system has changed and continues to change with the

advancement of ADR

3 Describe the effect of ADR on societal views of ldquojusticerdquo

4 Explain your views on the appropriateness of ADR in the Canadian legal system

Required ReadingViewing

View some videos available through the International Mediation Institute Mediation Podcasts

Read some blog posts from the following sites

Mediatecom The Weekrsquos Best Blog Posts

International Mediation Institute Mediation Blogs

Optional Readings

Eisenberg Deborah Thompson (2016) What we know (and need to know) about court-annexed

dispute resolution South Carolina Law Review 67 245-265

Hernandez-Crespo Mariana D (2012) From noise to music The potential of the multi-door

courthouse model to advance systemic inclusion and participation as a foundation for sustainable

rule of law in Latin America Journal of Dispute Resolution 2012

Menkel-Meadow Carrie (2009) Maintaining ADR integrity Alternatives to the High Cost of

Litigation 27(1) 1-9

Merry Sally Engle (1988) Legal pluralism Law amp Society Review 22 869ndash896

Stipanowich Thomas amp Lamare J Ryan (2013) Living with ADR Evolving perceptions and

use of mediation arbitration and conflict management in Fortune 1000 corporations Harvard

Negotiation Law Review 19 1-68

Assessment in Alternative Dispute Resolution

To receive credit for Alternative Dispute Resolution you must complete all course

assignments achieve a mark of at least 50 on the final exam and achieve an overall

course grade of at least 50

The weightings for each assessment item are as follows

Activity Credit Weight Date Due

Assignment 1 written response 10 of final grade End of Unit 4

Assignment 2 written response 10 of final grade End of Unit 8

Assignment 3 written response 10 of final grade End of Unit 10

Assignment 4 oral presentation 10 of final grade End of Unit 11

Assignment 5 oral response 10 of final grade End of Unit 12

Final Examination 50 of final grade End of all Units

Total 100 of final grade

Assignments 1 and 2

You are required to submit two written online responses You may answer any one question

arising from each of the following unit clusters

bull Units 1 to 4

bull Units 5 to 8

All responses should be completed by the time you finish studying Unit 10

Written responses should be between 500 and 750 words each

Example question ldquoThink of an occasion when you consciously decided not to pursue a potential

grievance What were your reasons What would have stimulated you to pursue it Using the ideas and

terminology of this unit describe the conflict you experiencedrdquo

Assignment 3

For this assignment put yourself in the place of mediator who uses a facilitative style and who is

preparing to conduct interest-based mediation with two parties who have a legal dispute arising

out of an accident Your practice is to hold a separate private meeting with each of the parties

before the mediation starts to help assess the dispute and prepare the parties to engage in an

interest-based mediation process Part of that preparation consists in assisting the parties to

identify their real interests needs and concerns in relation to the conflict in which they find

themselves

With that in mind read the transcript of what one of the parties has told you as if you were

listening to them face to face Then prepare an oral submission as follows

Your submission should consist of five oral responses you might make to the client in order to

help prepare him for the upcoming mediation including a better awareness of his needs interests

concerns and possible settlement range

Each of the five responses should be in the following two part format

1 First restate (or reflect) something you have heard from the client to show that you

understand what you are being told This should take the form of a statement starting

with the words ldquoYou said helliprdquo or ldquoYou indicated helliprdquo or ldquoYou went on to say helliprdquo or

similar

2 Then follow that up with a question designed to bring out a need concern interest or

emotion of this party or a reframing statement that may help this party to view the

dispute in a different light A question may also be used to help clarify his position

options for settlement or potential range of settlement figures

A question probing interests may be worded something like ldquoBased on what you have

said it seems to me that what you are really interested in (concerned about) is hellip Would

that be correctrdquo A reframing statement might be in the form of ldquoWould another way of

putting it be helliprdquo A question for clarification might be ldquoDo I understand it correctly that

helliprdquo You are not restricted to these wordings Be creative

The essential goal of this assignment is to encourage you to think of ways a mediator might help

a disputing party prepare to engage in interest-based mediation and negotiation with a view to

settlement of the dispute

Assignment 4

For Assignment 4 put yourself in the place of a mediator who is starting the first mediation

session with two disputing parties As part of your opening remarks explain the intent and

process of mediation and your role as a mediator and try to create a safe and supportive

environment for the parties Record what you would say (Hint try not to read a prepared script)

The maximum recording length for this assignment is 5 minutes

Assignment 5

For Assignment 5 put yourself in the place of a mediator who is hearing an opening statement

(or ldquostoryrdquo) from one of the disputing parties As part of the mediation process summarize or

ldquorepeat backrdquo the statement you hear using the techniques and skills you have learned about in

this course Include at least one reframe Record your response to the statement you hear

The time limit indicated for this assignment is 11 minutes which includes listening to the story and

recording your summary

Final Exam

Final Exam The final examination is worth 50 of your total course mark It is a closed book

online exam written over 3 hours Please consult the Online Exams (MuchLearning) section of

the Procedures for Applying for and Writing Examinations in your online Student Manual and

visit httpregistrarathabascaucaexamsonlinestudent for more information

dispute in a different light A question may also be used to help clarify his position

options for settlement or potential range of settlement figures

A question probing interests may be worded something like ldquoBased on what you have

said it seems to me that what you are really interested in (concerned about) is hellip Would

that be correctrdquo A reframing statement might be in the form of ldquoWould another way of

putting it be helliprdquo A question for clarification might be ldquoDo I understand it correctly that

helliprdquo You are not restricted to these wordings Be creative

The essential goal of this assignment is to encourage you to think of ways a mediator might help

a disputing party prepare to engage in interest-based mediation and negotiation with a view to

settlement of the dispute

Assignment 4

For Assignment 4 put yourself in the place of a mediator who is starting the first mediation

session with two disputing parties As part of your opening remarks explain the intent and

process of mediation and your role as a mediator and try to create a safe and supportive

environment for the parties Record what you would say (Hint try not to read a prepared script)

The maximum recording length for this assignment is 5 minutes

Assignment 5

For Assignment 5 put yourself in the place of a mediator who is hearing an opening statement

(or ldquostoryrdquo) from one of the disputing parties As part of the mediation process summarize or

ldquorepeat backrdquo the statement you hear using the techniques and skills you have learned about in

this course Include at least one reframe Record your response to the statement you hear

The time limit indicated for this assignment is 11 minutes which includes listening to the story and

recording your summary

Final Exam

Final Exam The final examination is worth 50 of your total course mark It is a closed book

online exam written over 3 hours Please consult the Online Exams (MuchLearning) section of

the Procedures for Applying for and Writing Examinations in your online Student Manual and

visit httpregistrarathabascaucaexamsonlinestudent for more information

Part A of the exam comprises 15 multiple choice and truefalse questions (2 marks each) similar

to those in the self-study quizzes This part covers the whole course Part B comprises 6

questions (5 marks each) that are drawn from the learning objectives listed for the units in the

course Each question is to be answered in a paragraph Part C (40 marks) requires you to answer

8 questions (5 marks each) based on a scenario like the one presented in Assignment 3 The

questions ask you to analyze the facts given in relation to what you have learned about

negotiation mediation and hybrid processes

See exam procedures for information on how to book your exam and other questions you may

have