COMING UP

Final Paper Due Dec 2, 3:30 pm.

December 2: Guest speakers: TBA

Instructor: Catherine Morris, BA, LLB (Alberta), LLM (UBC)

Course Outline
(schedule and some readings are subject to change. See pdf version of course outline (NOTE: this webpage is more current)

Assigned Texts

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Course Description, Objectives and Methods

Course Description (as per the UVic Calendar)

This course will examine the forms and functions of major disputing processes - mediation, negotiation and adjudication. These are the processes which are critical to lawyers and other persons concerned with preventing or resolving disputes. Both court adjudication and alternative dispute resolution (ADR) will be studied from theoretical, critical and practical perspectives. The course will also examine and develop the skills used in various dispute resolution procedures.

Course Objectives

By the end of this course, it is envisioned that participants will:

  • be aware of several approaches to decision making and conflict resolution, including negotiation, mediation (and conciliation), arbitration, litigation and legislation.
  • be able to assess a problem or conflict to determine its suitability for negotiation, mediation, adjudication or other approaches;
  • understand several types of negotiation and dispute resolution, including distributive and integrative approaches;
  • understand several strategies for negotiation and dispute resolution, including competitive, accommodating and collaborative approaches;
  • be able to prepare for negotiation and mediation;
  • understand and apply a process of interest-based negotiation or mediation;
  • understand several listening and communication skills for dispute resolution;
  • consider topics of emotions, face, power, culture and gender in dispute resolution;
  • consider ethical issues in dispute resolution;
  • examine several critiques and public policy issues regarding alternative dispute resolution;

Instructional Methods

  • readings,
  • lectures,
  • student presentations and class discussions,
  • research and writing assignments.

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Course Assignments and Evaluation

  • Class attendance and preparation (20%). Students are expected to make the necessary arrangements to prepare for and attend all classes and participate in all class exercises. This component of the course is evaluated based on punctual attendance and evidence of good preparation of required readings or other assignments.
  • First Assignment (5%). Due September 11, 2009. See opening assignment details (.pdf).
  • Mid-term assignment (25%). This assignment is distributed by Wednesday October 14 and is due at 3:15 pm Wednesday, October 28, 2009. Students are expected to be familiar with all assigned readings, relevant cases and legislation covered up until October 21. assignment posted. If you do not see the actual assignment, clear your browser cache and check again. See the grading critera for this assignment.
  • Final Writing Assignment (50%): Final paper due Wednesday December 2, 2009
    • Length: Please write a paper of 3,000 to 3,500 words or about 12-14 pages (maximum) on a topic of interest to the student. Paper length excludes notes, references and diagrams. Marks may be deducted for excess.
    • Criteria for evaluation:Students' papers are expected to demonstrate knowledge of all relevant course readings as well as relevant external research. See the grading criteria. See the Faculty of Law Grading Standards.
      • October 31: It is recommended (but not required) that students submit by email a topic, abstract, outline and preliminary list of references before October 31, 2009.
      • December 2: Final papers are submitted to the instructor in hard copy by December 2, 2009, at 3:30 pm.
      • Deadlines, equality and extensions: To ensure relative equality of opportunity among students, marks of students who, without prior arrangement, submit papers later than the deadline of December 2, 2008 at 3:30 pm have marks reduced at the rate of 2% of the total course grade for each day (or part of a day) past the deadline. Extensions (without marks reduction) are given for reasons of illness or emergency (including family emergency) with permission of the relevant faculty.
      • Students may propose longer papers or extensions for valid research reasons with the permission of the instructor in consultation with relevant faculty advisors. Please discuss proposals for longer papers or special deadlines with the instructor well in advance of stated deadlines.

Class schedule and readings (subject to amendment)

See the course outline(pdf). The course schedule and readings are also set out below.

1. What is "Dispute Resolution?": Roles of lawyers
One class (September 9)

Readings: Students are expected to read the following in preparation for the first class:

  • * Colleen Hanycz, Trevor Farrow, Frederick Zemans, eds. The Theory and Practice of Representative Negotiation. Toronto: Emond Montgomery Publications, 2008, chapters 1 and 2 (3-37). (30 pages)
  • * Julie Macfarlane. The New Lawyer: How Settlement Is Transforming the Practice of Law. Vancouver: UBC Press, 2008, preface and chapters 1 and 2 (52 pages).
  • Morris, Catherine. The Good Negotiator: Negotiation Theory, Processes and Skills for Lawyers. Negotiation workshop manual. Victoria: Catherine Morris, 2009, 3-9. (6 pages)
  • Morris, Catherine. Definitions in the Field of Conflict Transformation. Victoria: Peacemakers Trust, available online at http://www.peacemakers.ca/publications/ADRdefinitions.html (9 pages)

2. Understanding Conflicts and Disputes
One class (September 16)

Readings:

  • * William L.F. Felstiner, Richard Abel and Austin Sarat, "The Emergence and Transformation of Disputes: Naming, Blaming, Claiming..." (1980-81) 15(3-4) Law & Society Review 631-654 (32 pages) online (UVic netlink ID required).
  • Pierson v. Post 3 Cai. R. 175; 1805 N.Y. LEXIS 311
  • Morris, Catherine. The Good Negotiator: Negotiation Theory, Processes and Skills for Lawyers. Negotiation workshop manual. Victoria: Catherine Morris, 2009, 13-18 (6 pages).
  • * Julie Macfarlane. The New Lawyer: How Settlement Is Transforming the Practice of Law. Vancouver: UBC Press, 2008, chapter 3, 4 (50 pages).
  • Pierson v. Post 3 Cai. R. 175; 1805 N.Y. LEXIS 311
  • OPTIONAL: Berger, Bethany R.5. "It's Not about the Fox: The Untold History of Pierson v. Post." 5 Duke L.J. 1089 (2005-2006). onlinr )UVic Netlink ID required)
  • OPTIONAL: Sandra Cheldelin, Daniel Druckman, and Larissa Fast, eds. Conflict: From Analysis to Intervention. New York, LonContinuum Books, 2003, 39-96 (the rest of this book is recommended for those interested in international conflict and peacebuilding)

3. Philosophies for conflict handling and dispute processing
one class (September 23)

Readings:

4. Negotiation theory, processes, skills and ethics
Three classes (September 30, October 7, October 21, 28)

Readings:

  • Morris, Catherine. The Good Negotiator: Negotiation Theory, Processes and Skills for Lawyers. Negotiation workshop manual. Victoria: Catherine Morris, 2009, chapters 2, 3, 5 (to page 67, and 93-117).
  • Colleen Hanycz, Trevor Farrow, Frederick Zemans, eds. The Theory and Practice of Representative Negotiation. Toronto: Emond Montgomery Publications, 2008, chapter 3, 4, 5 (58 pages).
  • Julie Macfarlane. The New Lawyer: How Settlement Is Transforming the Practice of Law. Vancouver: UBC Press, 2008, chapter 7, 8 (59 pages).
  • Lax and Sebenius, "Three Ethical Issues in Negotiation," Negotiation Journal, (1986) p 363-370. (Available online - UVic netlink ID required (7 pages)
  • OPTIONAL: Bok, Sissela. "Truthfulness, Deceit, and Trust." In What's Fair? Ethics for Negotiators, edited by Carrie Menkel-Meadow, and Michael Wheeler, 79-90. San Francisco: Wiley, 2004. (Book on reserve) (11 pages)
  • OPTIONAL: David Luban, "The Ethics of Wrongful Obedience," in Deborah Rhode, ed. Ethics in Practice: Lawyers' Roles, Responsibilities and Regulation (Oxford: Oxford University Press, 2000), 94-120 (article to be placed on reserve when received from interlibrary loan) (26 pages)
  • OPTIONAL: Goodpaster, Gary. "A Primer on Competitive Bargaining." Journal of Dispute Resolution Journal of Dispute Resolution (1996): 325-378 Available online (UVic netlink ID required) ()51 pages)
  • OPTIONAL: Macfarlane, Julie. The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases. Ottawa: Family, Children and Youth Section, Department of Justice Canada. Available, http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/2005/2005_1/index.html
  • OPTIONAL: Druckman, Daniel. "Negotiation" In Conflict: From Analysis to Intervention, edited by Sandra Cheldelin, Daniel Druckman, and Larissa Fast, 252-269. New York, London: Continuum Books, 2003.

5. Dispute Resolution: Power, emotions, culture, gender
one or two classes (part on November 4, part on November 20)

Please read at least the Salacuse article for November 4 and do | this anonymous survey |

Readings:

6. Mediation
two classes (November 4, 18, 20)

Guest lecturer November 18: Gordon Sloan, mediator and trainer, ADR Education

Readings:

  • Cheldelin, Sandra. "Mediation and Arbitration." In Conflict: From Analysis to Intervention, edited by Sandra Cheldelin, Daniel Druckman, and Larissa Fast, 280-300. New York, London: Continuum Books, 2003. (Book to be place on reserve)(20 pages)
  • Moore, Christopher W. "How Mediation Works," In The mediation process : practical strategies for resolving conflict. 3rd ed. San Francisco : Jossey-Bass, 2003 (41-77). The rest of this book is recommended reading for those interested in mediation. (Book to be placed on reserve) (36 pages)
  • Grillo, Tina, "Mediation Alternative: Process Dangers for Women." (1991) 100 (6) Yale Law Journal 1545-1610, available at http://heinonline.org.ezproxy.library.uvic.ca/HOL/Page?handle=hein.journals/ylr100&id=1&size=2&collection=journals&index=journals/ylr(UVic Netlink ID required) (65 pages)
  • Waldman, Ellen A. "Identifying the Role of Social Norms in Mediation: A Multiple Model Approach," (1997) 48 Hastings Law Journal 703-769, available at http://heinonline.org.ezproxy.library.uvic.ca/HOL/Page?handle=hein.journals/hastlj48&id=1&size=2&collection=journals&index=journals/hastlj (UVic netlink ID required) (63 pages)
  • Morris, Catherine. "The Trusted Mediator: Ethics and Interaction in Mediation," in Rethinking Disputes: The Mediation Alternative (York, ON: Emond Montgomery and London, UK: Cavendish Publishing), 301-347 (book on reserve) (46 pages)
  • OPTIONAL: Goodmark, Leigh. "Autonomy Feminism: An Anti-Essentialist Critique of Mandatory Interventions in Domestic Violence Cases." (2009) Florida State University Law Review [no volume, pages numbers available online], available at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=623549#show1354047
  • OPTIONAL: Macfarlane, Julie. The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases. Ottawa: Family, Children and Youth Section, Department of Justice Canada. Available, http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/2005/2005_1/index.html
  • OPTIONAL: Morris, Catherine. Impartiality and Mediation: The Trusted Mediator. Paper presented at the 9th Annual Northwest Alternative Dispute Resolution Conference, April 28-29, 2000, University of Washington School of Law, Seattle, Washington, available online

7. ADR initiatives in the justice system
one class (November 25)

Readings:

  • Julie Macfarlane. The New Lawyer: How Settlement Is Transforming the Practice of Law. Vancouver: UBC Press, 2008, Chapter 9 (22 pages)
  • Pirie, Andrew. "Critiques of Settlement Advocacy." In The Theory and Practice of Representative Negotiation, ed. Colleen Hanycz, Trevor Farrow, Frederick Zemans. Toronto: Emond Montgomery Publications, 2008, Chapter 11, 275-316 (41 pages).
  • Galanter, Marc. "The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts." (2004) 1 (3) Journal of Empirical Legal Studies 459-570, available at http://www3.interscience.wiley.com.ezproxy.library.uvic.ca/cgi-bin/fulltext/118821215/HTMLSTART (UVic netlink ID required). (111 pages; please skim; read sections of interest)
  • Grillo, Tina, "Mediation Alternative: Process Dangers for Women." (1991) 100 (6) Yale Law Journal 1545-1610, available at http://heinonline.org.ezproxy.library.uvic.ca/HOL/Page?handle=hein.journals/ylr100&id=1&size=2&collection=journals&index=journals/ylr (UVic Netlink ID required) (65 pages -- note that this reading will have been done for previous classes)
  • Morris, Catherine. "The Trusted Mediator: Ethics and Interaction in Mediation," in Rethinking Disputes: The Mediation Alternative (York, ON: Emond Montgomery and London, UK: Cavendish Publishing), 301-347 (book on reserve) (46 pages -- note that this reading will have been done for previous classes)
  • Notice to Mediate (General) Regulation
  • OPTIONAL: McHale, M. Jerry, Irene Robertson, and Andrea Clarke. "Building a Child Protection Mediation Program in British Columbia." Family Court Review 47(1)(January 2009): 86-97. .available online)

8. Beyond ADR
one class (December 2)

  • Guest speakers:
    • Jim Doswell, Chief Negotiator, Northern Shuswap First Nations
    • Ted Hughes, OC, QC, Former federal chief land claim negotiator and chief adjudicator in the ADR process of Indian Residential Schools Resolution Canada
    • possible other speakers to be announced

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Ideas for Papers