Carrel – ADR as First Career Video Blog Update

Alyson Carrel (Northwestern) passes along this update about her ADR as First Career Video Blog.

——————————

In September, I launched a new video blog called ADR as 1st Career, in order to collect and celebrate stories of individuals who chose the ADR field as the place to start their professional careers. In the past 3-4 months, the blog has grown from featuring just 5 individuals to now featuring 28 (with many more on the way). I have talked with ADR professionals from the east coast to west coast and even overseas in England and Italy. And the blog has been viewed over 2800 times.

I received a lot of feedback on the blog from folks surprised to find out that there are so many individuals who claim ADR as their first career – who chose to ignore the sage advice to practice law or establish themselves in another field first before transitioning over to ADR as a second or even third career. And although this path is still rare compared to other professions, there are a large number of folks who because of their passion and dedication, or in some cases sheer luck, realize they can in fact pursue a career in ADR at an early age or soon after graduation.

The individuals featured in this blog tend to be entrepreneurial, passionate, and steadfastly dedicated to dispute resolution as a way of life (see for example, J Kim Wright, Robyn Weinstein). The stories range from traditional full time mediation work (private mediators Kahlil Palmer, Gururaj Kumar, Jason Dykstra, and court mediators Peggy King, Stephanie Senuta) and ombuds work (Annalisa Peterson), to directing agency/court mediation programs (Shawn Davis, Caroline Torosis, Amy Koltz) or community mediation programs (Cassie Lively, Mac Steele). A few are legal counsel in ADR departments or ADR organizations (Vik Kapoor, Tracey Frisch), work in academia or law school clinics (Heather Kulp, Donna Erez-Navot, Debra Berman and Stephanie Bell), and some work internationally (Scott Hinkle, Romina Canessa). I interviewed veterans in the field (such as Geetha Ravindra), folks who first started mediating in peer mediation programs (Clare Fowler) and one who just graduated law school this year and started her first ADR position this fall (Asha George). I have to admit that some of the individuals featured on the blog did in fact work in other fields for a bit before starting their career in ADR, but still do not fit the narrative of the traditional path to ADR (working as an attorney for 20 years or better yet, a judge, retiring a little early and then mediating) – (Jason Harper, Peggy King,).

The blog has been featured on Mediate.com, mentioned in a number of workshops for folks thinking of pursuing a career in ADR, shown in ADR classes, and gotten a little attention on twitter. But one of my favorite responses to this blog comes from Laura Noah, a full time mediator in the Cook County Family Mediation program. Laura recently wrote a post on her blog about the realization that as the next generation of ADR professionals, we have a story to share. That for those of us who started in mediation at such a young age, at such an early stage in our career, it is odd to realize that we are no longer the babies, the newbies, the novices whose role is simply to observe, learn, and absorb. It is our role now to lead, to guide, to mentor, to support.

I hope you have been enjoying the videos. And please continue to encourage your students and alum to contact me if they would like to share their story (and if your career path would make a good fit, please consider sharing it with us as well). Hearing about so many individuals who have chosen to forge this path, trail blazers in the field, is inspiring. But even more so, I am beginning to think there is a new narrative to be told. That the efforts to increase ADR curriculum in law schools, on college campuses, in high schools and even elementary schools, is changing the landscape as to what is possible. Choosing ADR as your first career may not be easy, you may not be on the fast track to making millions, but if you are passionate about this work, it is possible.

 

 

 

Srikanthiah and Martinez – Applying Negotiations Pedagogy to Clinical Teaching: Tools for Institutional Client Representation in Law School Clinics

Jayashri Srikanthiah (Stanford) and Jan Martinez (Stanford) recently published an article entitled Applying Negotiations Pedagogy to Clinical Teaching: Tools for Institutional Client Representation in Law School Clinics. It can be found at 21 Clinical L. Rev. 283 (2014), but it is not online just yet.  It should be appearing here soon.

Law clinics across the country in a range of subject areas are increasingly engaging in advocacy work on behalf of and alongside institutional clients such as nonprofits, coalitions, tribes, and a range of formal and informal organizations. This article explores how clinicians may employ tools from negotiations pedagogy to teach students how to diagnose and address the complex problems that institutional clients bring to clinics. The article posits that, to effectively represent an institutional client, students must navigate relationships with external players as well as within the institutional client itself. Negotiations pedagogy provides a framework for teaching students how to understand and engage with the relationships that an institutional client—for instance a nonprofit—may have with external players such as governmental regulators, local governments, foundations, other nonprofits, constituents, allies, and opponents. The article examines tools from negotiations pedagogy that assist in teaching students to handle these external relationships as well as relationships within the institutional client, such as with a board of directors, an executive director, and other staff.

Carrel: Yes, Please – Can Improv Improve Responses to Ethical Dilemmas?

The indefatigable Alyson Carrel (Northwestern) reflects on Amy Poehler’s new book Yes, Please, which, like all roads, leads to dispute resolution.

————————————————————-

The ABA-Dispute Resolution Section just opened registration for the 17th Annual Spring Conference in Seattle, April 2015. One of the sessions that has been popular over the last couple years is called “What I’ve Been Reading,” where panelists share some books they have recently read and their thoughts and reactions as leaders in the ADR field (word on the street is this session will once again be featured at the conference in 2015). I just finished Amy Poehler’s new book, Yes, Please, and wanted to share some of the reflections I had on recent negotiation workshops I attended.

One of the first rules of improv is the idea that you always say “yes.” If a fellow actor presents says to you, “here is a cup of dirt,” you can’t say, “no, this is a cup of the world’s finest wine.” Instead, you are taught to say “yes, and” as in, “’yes, and’ the dirt is full of gold.” “Yes, and” provides the opportunity to build off and improve on other’s ideas, instead of undermining the other actor and stalling or even stopping the scene. Actors in improv must see each other as partners, not competitors. This sentiment seems to fit nicely with concepts associated with self-determinative and interest-based processes. If an agreement is only possible when both sides agree, then you are, in some ways, at the mercy of the other side to agree with you and are maybe even best served if you can help create value to the other side with whom you are negotiating.

Reading Poehler’s stories about her experience in comedy and improvisation quickly led me to reflect the Fall Negotiation Workshop hosted by Northwestern earlier this fall. Professor Michael Wheeler, from Harvard Business School, discussed his new book The Art of Negotiation: Improvising Agreement in a Chaotic World. He posited that successful negotiators must not only prepare effectively but must have the skills and presence of mind to adapt and respond to new information presented in the course of a negotiation. Wheeler writes that we can’t script a negotiation because we can never know for sure what ideas the other party may have about where to go and how to resolve the situation, circumstances may shift and change in the course of the negotiation, and our own preferences may change. Thus, he says, we have to be able to improvise, both strategically and tactically.

In Poehler’s book, she describes a time when she was working at Saturday Night Live and five seconds before she was pushed on stage to perform live on TV she was presented with a prop she had not previously used or seen before. This new prop, or piece of information, made her feel uncomfortable but she didn’t know what to do and so just went on to perform the skit. Unfortunately, the prop was a doll modeled after a severely disabled girl featured in a recently aired made for TV documentary about twin sisters with cerebral palsy. Following the performance, the producers of the documentary contacted Poehler and called out the insensitive and offensive nature of the skit. Poehler’s first response was to say, it was someone else’s job to tell her this was based on a real story, that the producer should have realized that she is a “NICE PERSON” and never do anything to hurt someone. She perceives herself as more ethical or moral than her actual behavior indicated.

As I read this passage, I thought of the recent talk I heard Professor Jean Sternlight give at the ABA Dispute Resolution’s Advanced Mediation and Advocacy Skills Institute entitled “The Psychology of Ethics in Negotiation and Mediation.” Sternlight shared with us multiple psychological concepts that impede our ethical decision-making. She shared with us we often believe we are more ethical than we actually are – that we blame ethical lapses on “them, not us.” Sternlight also described the phenomenon of Forecasting Errors. Forecasting Errors is the idea that we incorrectly forecast and overestimate how we will react to decisions when asked in hypothetical form.

As I read Poehler’s story and thought about Sternlight’s presentation, I reflected on new research Professor Art Hinshaw presented at Northwestern’s Fall Negotiation Workshop. To better understand ethical decision making in negotiation, Hinshaw sent a series of hypothetical scenarios to 1Ls, 3Ls, and practicing attorneys and asked them to indicate how they would respond to each given situation. The scenarios presented a series of ethical dilemmas. Hinshaw’s data showed that at least 30% of respondents failed to identify the ethical dilemma or if identified, chose to respond unethically. When I put Hinshaw’s research in context of Sterhnlight’s presentation on forecasting errors, I began to wonder if the inability to identify ethical dilemmas is even more rampant than his data showed. Hinshaw’s research is based on responses to a hypothetical situation and if according to forecasting errors people tend to overestimate their ability to respond ethically, his data may mean our students are worse at identifying ethical dilemmas than we realized.

So how does this all come together? Sternlight demonstrated that individuals overestimate their ability to make ethical decisions when asked to respond to hypothetical situations – that they are less likely to make ethical decisions when faced with the same situation in real life. Is this because the individual has less time to process, prepare, or think through the quandary presented? If so, can we use improv techniques to help a negotiator respond more effectively in the moment to new information, specifically information that creates an ethical quandary?

I don’t have an answer to those questions, but the participants in the Fall Negotiation Workshop at Northwestern had an opportunity to explore some of these concepts following Hinshaw and Wheeler’s presentations. We put the participants in small groups and led them through a series of improv games and exercises culminating in a negotiation scenario that presented new information throughout the course of the scenario, creating possible ethical quandaries. I wonder if replicating this scenario in a more controlled study could provide us the answers to the questions posed above.

Yes, Please was a fun read. Not only does she have a knack for presenting information humorously, but it was also fun to think about these academic presentations through the lens of this humorous book. I don’t know if the individuals slated to present in the third iteration of “What I’m Reading” will want to discuss Yes, Please but connecting our field’s scholarship with popular books is refreshing and fun either way.

I hope to see you all at the conference in Seattle!

My New Favorite Academic Article

A few years ago a provocative paper looking at the legal implications of the “F” word received lots of attention and notoriety.  Now another paper is making the rounds, “Get Me Off Your F-ing Mailing List,” a paper accepted for publication in The International Journal of Advanced Computer Technology.

In 2005 a couple of computer scientists composed the paper and started sending it in response to unwanted spammy conference solicitations.  The paper simply repeats the phrase “get me off your f-ing mailing list” over and over and has these great charts/graphs:

 

mailing list 1

mailing list 2

After the pdf made the rounds in the computer science community, an Australian researcher sent it in response to a spam solicitation for papers from the International Journal of Advanced Computer Technology.  Naturally the journal automatically accepted it, indicated that it had received an anonymous review rating of “excellent,” and asked for payment of a $150 fee.  The paper was not published because the fee was never paid.

Awesome.

Hat tip Vox via The Dish

 

 

Love: Is Mediation A Sleeping Beauty?

From FOI Lela Love (Cardozo) – dispatches from the Melnick Symposium at Cardozo – Is Mediation a Sleeping Beauty?

On November 2, 2014, at the Cardozo Journal of Conflict Resolution fall symposium, speaker after speaker asked Is Mediation a Sleeping Beauty?It was a taking stock event with luminaries from the field seeing this as a turning point in reviving core elements of mediation or succumbing to the devolution of mediation in the direction of an adversarial litigation-lite process or, at best, a settlement conference. Most thought that mediation was indeed sleeping and not all together beautiful and that action was needed to revive her.

Here are highlights from the speakers:

  • Professor Giuseppe De Palo (ADR Center in Rome, Italy) proposed mandatory mitigated mediation (mandatory mediation with an easy opt-out) as a response to the underuse of mediation throughout the European Union.  Thanks to this process, Italy leads countries in the EU in the use of mediation.
  • Kim Kovach suggested that mediation is in a coma due to its marriage with litigation in court settings, and the resulting mutant child (liti-mediation) is indeed unattractive.
  • Professor Jacqueline Nolan-Haley (Fordham Law School) described these times as a season of light with mediation’s popularity at a high point and also a season of darkness from abuse of process and confusion of the mediator’s role.
  • Professor Robert A. Baruch Bush (Hofstra University School of Law) concluded that mediation had been drawn into an intoxicating problem-solving culture—resulting in many mediators being too focused upon the “drug-like high” of settlement.
  • Professor James Coben didn’t mince words when he said that he believed mediation has turned ugly – another tool for litigators to delay and abuse the judicial system. He also described our current system for selecting mediators as an “aristocracy,” not based on mediator skill but instead on inflated reputations.
  • Professor Josh Stulberg explored whether interest-based bargaining theory, often the mediator’s privileged approach for fostering negotiation, operates to reinforce party inequalities and undermine party self-determination, contrary to the presumptively salient values of the mediation process.
  • Eric Galton blamed commercial mediators for caving in to lawyer demands to eliminate joint sessions, limit party participation, and provide evaluations.
  • Professor Nancy Welsh shifted to the fairy tale of Cinderella, arguing that as courts prioritize case closure and lawyers’ preferences over process quality or the protection of parties’ self-determination, they too often behave like the self-interested and vain stepmother. Maybe the courts can be the Fairy Godmother, though, by granting mediation the markers of legitimacy and thus enabling others to appreciate the process’ inherent beauty.
  • Professor Erez-Navot pointed to “wicked witch” elements in child permanency mediation, including reduced party participation and representatives who are more concerned with their professional relationships with judges and adversaries than the welfare of the parties they represent.
  • Professor Carol Liebman suggested candidates for Prince Charming might be: mandatory mediation (for certain cases), pay for mediators (in situations where other professionals are being paid), and adherence to core mediation values.
  • Tracy Frisch discussed several efforts of the AAA to respond crises, such as Hurricane Sandy and the bankruptcy crisis in Florida.
  • Brad Heckman shared his experience using social media to promote mediation and described the unparalleled access and exposure he found in using outlets such as Twitter and participating in TEDx.
  • Laurel Kaufer struck a positive note, finding beauty in mediation as she described the success of Prison of Peace, a nonprofit organization she co-founded that trains long-term inmates in mediation, life, and peacemaking skills.

The Journal of Conflict Resolution will be publishing a symposium edition in Spring 2015.  Many of the presenters at the symposium will be publishing articles in line with the themes discussed at the symposium.

Cal-State Dominguez Hills is Hiring

California State University – Dominguez Hills is searching for two faculty members in its Negotiation, Conflict Resolution, and Peacebuilding Program.  The first position is for the Director of the Program, which would include being a tenured professor. Two blurbs from the announcement:

The Position – Serve as director of the program; provide course scheduling, curriculum design and revision; teach graduate-level as well as undergraduate-level courses on campus and online (distance learning) in the field of negotiation, conflict resolution & peacebuilding; engage in community service; and maintain a respectable output of peer-reviewed publications and conference presentations.

 

The Ideal Candidate – Outstanding teacher, scholar, conference presenter, community service participant, veteran of domestic and international peacebuilding activities, conflict resolution practitioner, and service as a department chair, program director, or other academic affairs administrator.

The second position is for a tenure-track assistant professor in the Program.  Two blurbs from this announcement:

The Position – Teach graduate-level as well as undergraduate-level courses on campus and online (distance learning) in the field of negotiation, conflict resolution & peacebuilding, and maintain a respectable output of peer-reviewed publications.

 

The IdealCandidate - The successful candidate will possess the teaching, scholarship and professional experience needed to teach courses in domestic and international peacebuilding and conflict resolution.

Applications for both positions should be submitted online at the following link:

http://www.csudh.edu/employment/

And, applicants should request references to submit reference letters directly to the following address:

A. Marco Turk, J.D.

Emeritus Professor and Program Director

Negotiation, Conflict Resolution and Peacebuilding

California State University, Dominguez Hills

1000 East Victoria Street (LIB-5334)

Carson, California 90747

E-mail: amturk@csudh.edu

Email copies: plabaun@csudh.edu

 

 

 

Navot on Tools for the Clinical Professor

Donna Erez Navot (Wisconsin) recently published an article entitled Tools for the Clinical Professor: Applying Group Development Theory to Collaborative Learning in Law School Mediation Clinics. An abstract is below and the article can be downloaded here.

 

This article examines the theory of group development and collaborative learning as applied to the small group law school mediation clinic. In contrast to the large group traditional law school experience, a clinical legal education, composed of smaller groups, embraces collaborative learning that fosters professional and emotional growth among students. Group development often involves four stages: inclusion, control, affection, and termination. By drawing on the author’s pedagogical experiences as a clinical law professor at the University of Wisconsin Law School Mediation Clinic, the author applies the four stages of group development to clinical legal education. The article finds that through an understanding and application of group development theory, clinical law school professors, especially ones who teach in small groups, can better support their students’ legal and emotional learning. “The concept of group development is quite compelling. The idea that a group is more than the sum of its human parts and that group’s move through predictable phases or stages is at once fascinating and a bit threatening.”

 

What is puffing?

John’s interesting post below leads me to ask a definitional question, what is puffing?  Some people believe it to be a broad term describing all dissembling in negotiation and other see it more narrowly, simply as exaggerating the positive qualities of an item.  It sounds like John’s definition is the former, while David Hoffman, author of the article The Best Puffery Article Ever, is more along the lines of the latter.  My old Blacks Law Dictionary from law school  goes with Hoffman, which is how I discuss the topic, but this may be a case where popular use is the trump card.  Years ago when discussing the definition of mediation Len Riskin said that how a term is used determines its meaning.  Maybe the horse is out of the barn with regard to puffing.  What’s your take?

Interestingly, the online version of Blacks does not include puffing in the words it defines.

 

 

 

 

Negotiation Ethics and Improvisation

On Friday Michael Wheeler (Harvard Business School) and I will headlining a program at Northwestern University School of Law entitled Negotiation Ethics and Improvisation (program and registration info here).  For those who don’t already know, Michael’s book The Art of Negotiation: How to Improvise Agreement in a Chaotic World, is a great addition to the field. I am very much looking forward to his thoughts on my favorite topic, negotiation ethics.

For those of you in Chicagoland, hope to see you there !!

ASU Aspiring Law Professors Conference – Reviewed

About a month ago I posted information about ASU’s Aspiring Law Professors Conference, a conference for those who are preparing to go onto the law professor job market and those who are thinking about becoming a law professor.  I’ve always thought it was a good conference to attend, but naturally I am biased.  So I was please to see Richard Chen’s (Pepperdine VAP) positive review of the conference.  This paragraph below sums up his thinking.

All in all, I found the conference to be very worthwhile.  For those who are considering whether to attend in the future, I think the conference would be essential for anyone going on the market straight from practice or perhaps a Ph.D. program.  I also think the conference would be useful for people, like me, in a smaller or relatively new VAP program.  I have been very fortunate to get lots of advice and tremendous support from my colleagues at Pepperdine, but it was still helpful to have a chance to practice my job talk in front of an additional audience and to get advice from people at a few different law schools.  Not surprisingly, there were fewer attendees from some of the larger fellowship programs, and I imagine people at such programs have multiple opportunities to do practice job talks and watch their colleagues do the same.  But even for them I think the conference could be useful in giving opportunities to practice with strangers….

This is an annual conference, so if you know anyone going on the market next year, please let them know of this opportunity.

 

Dealing with Different Perceptions of Reality

Lisa Blomgren Amsler (Indiana) and I are quoted in a recent Indiana Lawyer article entitled Dealing with Differing Perceptions of Reality.  The piece asks the question of whether mediators should be responsible for the disputing parties’ honesty during the mediation process. You can probably imagine where the two of us stand on the issue.  What strikes me as most interesting about the idea is this: the lack of understanding that mediation is simply a facilitated negotiation, not a court proceeding.

Introducing a New Contributor – John Lande

John Lande (Missouri) is someone who should need no introduction to readers of this blog as he’s been involved in just about every academic and professional ADR group and initiative over the years. John’s work has touched on so many facets of the field – negotiation, mediation, collaborative law, and Dispute Systems Design – not to mention all of the work he’s done through the ABA Dispute Resolution Section. But I can’t be an uncritical admirer; John does have at least one area where he could improve – photography. If you don’t already know, John always has a camera at the ready. Be careful when he’s around.

More seriously, here’s some advice that John received years ago, which is worthy of sharing:

Be open to the reality and complexity of ADR. Have a balanced perspective. Don’t be an uncritical cheerleader or a relentless critic.

He’s followed this advice in his writings, and I expect that will continue here.

Welcome John, it’s great to have you join the team.

Social Entrepreneurship, Community Lawyering & Dispute Resolution

Karen Tokarz (Washington U. – St.Louis) shares information about Wash U’s annual ADR scholarship roundtable, this year entitled Social Entrepreneurship, Community Lawyering & Dispute Resolution.  The lineup looks strong and, as a past participant in this event, my biased view is that it is a great event – they do a bang-up job with the event.  An edited version of Karen’s message is below.

——————————-

We invite you to join us for the upcoming scholarship roundtable on “Social Entrepreneurship, Community Lawyering & Dispute Resolution,” Th, Nov. 6, 3-6pm, and Fri, Nov. 7, 8-4.  The roundtable will include discussion of nine papers, five selected articles and four works-in-progress:

  • Erin Archerd (Ohio State) – “School Resource Officers as Community-Based Mediators; Overlooked Allies for Students and Schools”
  • Deborah Burand (Mich) – “Resolving Impact Investment Disputes: When Doing Good Goes Bad”
  • Nancy Cook (Mn) – “Building the Corral as We Reinvent the Horse: A Rolling Biography of a University-Community Partnership”
  • Amanda Kool & Heather Kulp (Harvard) – “An Uber Conflict: Dispute Resolution in the Sharing Economy”
  • Rachel Lopez & Susan Brooks (Drexel) – “Forging a Path Toward a New Community Justice Partnership”
  • Alicia Plerhoples (Georgetown) – “Beyond the Entity Debate: Corporate Governance for Social Enterprises”
  • Barbara Schatz (Columbia) – “Dispute Resolution in Social Enterprises” – tentative
  • Daniel Shaffzin (Memphis) – “You Be the Judge: Exploring Clinical Learning and Social Justice Through the Lens of an Administrative Hearing Officer”
  • Paul Tremblay (BC) – “Access to Justice and Transactional Legal Services for Entrepreneurs and Emerging Enterprises”

This roundtable is one of a series of scholarship roundtables in the ADR and clinical areas, hosted here at Washington University over the past decade, in conjunction with the Journal of Law & Policy.  This collaboration has produced four groundbreaking  volumes of ADR scholarship, including New Directions in ADR & Clinical Legal Education, New Directions in Restorative Justice, New Directions in Negotiation & ADR,and New Directions in Global Dispute Resolution, as well as a series of volumes focused on Clinical Education and Access to Justice, several of which address negotiation and dispute resolution issues. These volumes can be accessed at http://law.wustl.edu/journal/pages.aspx?ID=703.

The End of Mediation Clinics?

This summer I was tending to family matters, so I paid no attention to the big news of the passage of the ABA’s Revised Standards for Approval of Law Schools. And once I got back for the beginning of the semester, my focus was strictly on getting my classes ready.  Yeah, I responded to Jen’s email on the list serv about simulation classes, but that was about it.  So you can imagine my surprise this afternoon when I found out that the Revised Standards say

Standard 304. Simulation Courses and Law Clinics

 

(b) a law clinic provides substantial lawyering experience that (1) involves one or more actual clients, and (2) includes the following:(i) advising or representing a client; (ii) direct supervision of the student’s performance by a faculty member; (iii) opportunities for performance, feedback from a faculty member, and self-evaluation; and (iv) a classroom instructional component.

In my mediation clinic, all of our mediations are conducted through court ordered mediation – the litigants are required to go to mediation in order to receive a trial date. More importantly, my students are part of the court’s mediation program – a stable of court mediators who are court volunteers organized by the court itself (applications, background checks, court badges, etc.).  In other words, my students are part of the court writ-large; and the court writ-large does not engage in advising or representing clients. So it appears that my mediation clinic is now written out of the definition of a law school clinic as of August 12, 2014, when the Revised Rules became operational.

I am not saying that mediation clinics are joining the dinosaurs. In fact, I can see clinics that (a) have referral sources that are not courts, and (b) advise clients about various issues related to their dispute such as options, procedural issues, and legal information (as opposed to legal advice) maintaining their good graces in the eye of the ABA. But I can also see our field saying “that’s not what we do.”

And for those of us who no longer are officially clinics, I don’t expect that we’re going anywhere. The skills and theory we teach are important for lawyers, our classes are popular with students, and the fieldwork is among the best educational experiences the students will have. That said, we have to come up with new nomenclature. There’s always “Mediation Practicum,” but that’s so last century.  What do you think of the likes of “Mediation Lab”?  Labs are the rage, are they not?  Any suggestions?

Update: Carol Izumi (Hastings) rightly points out that Sandard 302(d) (Learning Outcomes) says that students need to show competency in “other professional skills” necessary to be an ethical and competent lawyer.  Interpretation 302-1 says that such skills may include negotiation and conflict resolution among others.  This reinforces my belief that although mediation clinics may no longer be considered clinics, they’re not going to be written out of the curriculum.

Update # 2:  The ABA Dispute Resolution Section, via Jim Alfini (South Texas), has been in contact with the Barry Currier, the Managing Director of the ABA’s Section of Legal Education.  In response to Jim’s email discussing the issue brought up in my post, Currier said “We’ll think this through and I will consult within our process and get back to you.”  Also, he pointed out that Revised Standard 304 will be phased in by making it applicable to students who are 1Ls in the fall of 2016.  So that give us 2 plus years to either be reinstated as clinics or to come up with other nomenclature.

Update # 3:  In my limited investigation into this matter, I’m told that the revised definition of clinics was designed specifically to keep schools from abusing the word “clinic”.  Apparently a number of law schools have been labeling their externships (working at Legal Aide, for example) as clinics.  According to my sources, these schools have been promoting a ridiculously high “clinical enrollment” when in fact, they have only 1 offering (or none) that most of us would consider a clinic.   So it appears that in trying to solve one problem, the revised rules have created another.

Blankley: Lessons from Auto Racing

Guest blogger Kristen Blankley (Nebraska) provides the following insights from the recent racing incident involving NASCAR legend Tony Stewart who killed a fellow driver Kevin Ward after Ward’s car crashed and Ward got out of his car and walked onto the race track.  For some press stories about the incident go here and here.

———————————

Many of you may know that I am a huge sports fan.  At times it seems contradictory – I am a fan of something that cannot ever be mediated!  Sports games and matches have winners and losers, and no one can negotiate (within the bounds of the rules) the final outcome.  That said, sports are also full of conflict – both on and off the field – including labor relations, player negotiations, salary disputes, cheating, and so on.

One recent incident has had me thinking about a number of my favorite themes to teach in mediation class.  On August 9, 2014, NASCAR driver Tony Stewart fatally hit a fellow racecar driver Kevin Ward Jr. during a Sprint Car race in northern New York.  During the race, Stewart drove perhaps too close to Ward, and Ward’s car crashed into the wall.  Within a span of less than 20 seconds, Ward got out of his car, walked down the racetrack, and Stewart hit Ward, who died from the impact.

Sports media, racing fans, and even casual YouTube watchers all seem to have developed very strong opinions on what happened.  Many state that Stewart intended on scaring (or even hitting) Ward and purposefully drove too close to him.  Other claim that Stewart did nothing wrong and, in fact, is the victim.  As mediators, we likely all believe that the truth lies somewhere in the middle.

This incident brings to mind two very important lessons.  The first lesson is perspective and judgment.  Neuroscience teaches us that our brains make judgments in fractions of seconds.  Upon learning a body of facts, our brains automatically filter out “useless” information to help us make snap judgments.  Hearing the same set of facts and watching the same videos has caused people to come to radically different conclusions regarding Stewart’s intent.  The fact remains, however, that none of us were in Stewart’s racecar, saw what he saw, and reacted how he did.  We don’t know the visibility on the track, the best way to move around slowing traffic, or how the car was handling.  Instead, we are rushing to judgment based on an incomplete set of facts.  In mediation and conflict counseling, I try to help clients understand the difference between facts and judgments so that they can move down their ladders of inference and gain valuable perspective.

The second lesson is one on contribution and blame.  The excellent book Difficult Conversations by Douglass Stone, Bruce Patton, and Sheila Heen explains how having the role a person has in a difficult situation (i.e., the “contribution”) is not always blameworthy (i.e., at “fault”).  This concept, while basic, is also novel to most lay persons.  We commonly equate contribution with blame, and yet often times we contribute to a bad situation, even when we are not blameworthy.  For Stewart, he certainly contributed to the accident – he was driving the car that hit Ward.  Ward contributed as well – he exited his racecar and walked down the track.  But is either man blameworthy?  I can’t answer that question, and I do not know if anyone can.  I do, however, use this technique with mediation parties (usually in caucus) so that they can assess how the situation has gotten to the present point.  Even when a party believes they are not “at fault,” they are often more willing to settle once they see how they have become involved in the situation.

Kristen Blankley

10th Annual Collaborative Law Practice Conference

The Dallas Bar Association Collaborative Law Section, the Global Collaborative Law Council, the SMU Dedman School of Law, and the Texas Center for Legal Ethics are co-sponsoring the 10th Annual Collaborative Law Practice Conference on October 8-10 at the Belo Mansion, located at 2101 Ross Avenue, Dallas.  This conference is open to all interested in dispute resolution – not just to lawyers!  Mediators, Human Resources professionals, Mental Health Professionals, and other ADR professionals are all welcome to attend.

This conference includes two separate seminars:  on October 8 we will have a 3-hour program on unbundled legal services presented by Forrest “Woody” Mosten, a nationally recognized authority on the subject, and on October 9-10 a two-day training on civil collaborative law, involving both classroom presentations on the process and extensive interactive role play in a hypothetical dispute (this year, an international employment law dispute).  Guest speakers at the training seminar include Marc Sheridan of New York and Florence Gladel of Paris, France.  Additionally, in celebration of our 10th anniversary, on Thursday night we plan a special outing to the State Fair of Texas for all interested participants!

A discount is available to participants who sign up for both programs.   Further details and registration can be found at: http://www.law.smu.edu/Events/Dean-Suite/10th-Annual-Collaborative-Law-Practice-Conference.aspx?c=hpEvent_10th-Annual-Collaborative-Law-Practice-Conference.

ADR as a First Career – New Video Blog

This announcement comes from Alyson Carrel (Northwestern) in the wake of this summer’s discussion about the Next Generation of ADR scholars on the list serv.

There has been a lot of discussion on DR list serves about the next generation of ADR professionals, practitioners and academics.  For recent graduates interested in pursuing a career in ADR, the advice they often receive is to first practice law or gain experience in another field before transitioning to ADR as a 2nd (or even 3rd) career.  I assume this advice stems from the personal experience of those giving it – as this was the career path of ADR’s founding generation.  But is this necessarily the narrative for our next generation?  I have a feeling that narrative is changing and decided to explore this idea by creating a new video blog (www.adras1stcareer.blogspot.com).

At the 2013 ABA-DR annual conference, I participated in a panel discussion organized by Donna Erez-Navot from University of Wisconsin, Tracey Frisch from AAA, and Heather Kulp from Harvard Law called “ADR: The Next Generation”.  The panel focused on how to successfully start your professional career in the ADR field.  The four of us all ignored the advice to pursue a career in something else before transitioning to ADR.  Instead, we forged our own career paths, creating a path to ADR as first career where one did not previously exist.  We thought by telling our stories, we might illuminate a new path for others similarly interested in starting out their professional careers in the ADR field.  As we prepared our talk, we began to realize our stories were somewhat similar and I began to wonder if each of our paths was so unique after all.   Then in reflecting on my many colleagues who started their careers in ADR right out of college, graduate school, or law school, I felt certain our paths were no longer as unique as I thought.  So why is the narrative still defining ADR as a 2nd (or 3rd) career?  I am hoping this video blog will help us shift that narrative and more accurately describe what it means to pursue a career in ADR and what is (and what is not) possible.

The fear in telling students and recent grads to pursue a career in ADR is that those jobs simply don’t exist and as their professors, trainers, and mentors, we are doing them a disservice by setting them up for disappointment.  But is that in fact the case?   My guess is that this blog will in fact highlight a large number of individuals who successfully pursued ADR as their first career who are happy and lead rich professional lives.   I don’t think these individuals are necessarily making a living as full time private mediators, but instead are working as administrators, government or court employees, clinicians, and trainers.  Is there anything wrong with that?  As we prepared our panel discussion, we received the feedback that we should really focus on tips for becoming full-time private mediators and to stay away from careers in government agencies, clinical teaching positions, or work at non-profit/community mediation centers.  Why do we down play administrative positions or government mediation jobs?  Is this similar to the distinction made in law school between big law and public interest?  And if so, is this the real disservice?

I don’t pretend to know the answer to this question, but I hope the video blog will help shed light on this issue and I am hopeful that the career paths they describe, while unique to our mentors and the first generation of ADR practitioners and academics, is not so unique in and of itself.  Their stories will show that there are others who have successfully forged a career path in ADR as their first career.  In fact, it may be a path more clearly marked and defined than we originally thought.

I’d love to hear your thoughts on this blog and want to encourage individuals to share their story.  Please visit www.adras1stcareer.blogspot.com and share your story and encourage others to share theirs.

Alyson Carrel

Missouri’s Job Announcement

Below is the hiring announcement from the University of Missouri.  I would be remiss if I didn’t mention what a great opportunity this is.  The folks at Mizzou (both present and past) are great.

The University of Missouri School of Law invites applications from entry-level candidates as well as experienced faculty for a full-time tenured or tenure-track position in the area of Dispute Resolution.  While candidates with additional substantive areas of expertise are welcome, the ideal candidate will have a primary focus on teaching and scholarship in Dispute Resolution.  Candidates for this position must have an excellent academic record and either (1) substantial legal practice or judicial experience, (2) substantial experience in academia, or (3) advanced academic training.  MU Law School’s nationally-ranked Center for the Study of Dispute Resolution was the first of its kind.  It includes a large and diverse group of faculty who are on the cutting edge of research, curricular initiatives, practical training, and law reform in the area of Dispute Resolution.

 

Application Procedure:  Review of applications will begin immediately and will continue until all available positions are filled. The School of Law will review the Faculty Appointments Registration applications as they are distributed by the AALS.  (If you are participating in the FAR you do not need to send your materials separately.) Applicants who are not participating in the Faculty Appointments Register must apply by submitting a cover letter and resume at http://hrs.missouri.edu/find-a-job/academic/.

Hat tip John Lande (via the list serv)

Detroit Bankruptcy Case – Judge Chastises Attorneys for Claiming Mediator Bias

In the Detroit bankruptcy case, one of the creditors claimed that the mediators – one of whom is the Chief US District Judge for the Eastern District of Michigan – were biased in favor of some philanthropic creditors.  According to this article the creditors claimed:

The plain truth is that the mediators in this case acted improperly by orchestrating a settlement that alienates the city’s most valuable assets for the sole benefit of one creditor group.

 

Yowza !!  Now that’s a charge.  According to the article, here’s what Judge Steven Rhodes’ order says in response.

[Judge Rosen’s ruling] added that the bond insurance company’s “highly personal attack” on Rosen was legally and factually unwarranted, unprofessional and unjust….. The court finds that the allegations concerning the mediators … are scandalous and defamatory.

Now that’s a slap from the bench.  Can’t wait to see the order itself and if there any issues from the mediation go up on appeal.

Hat tip – Stacie Strong via the list serv

Aspiring Law Professors Conference – Sept. 27th

On Saturday Sept. 27th the Sandra Day O’Connor College of Law at Arizona State University will be hosting the 6th Annual Aspiring Law Professors Conference.  The conference is valuable for anyone considering a career as a law professor, but it is specifically designed for those who plan to go on the academic teaching market.  Attendees get the opportunity to receive feedback on both a mock job-talk and a mock interview.  With both Arkansas and Missouri* looking to hire in ADR this year, I hope those of you hoping to join the ADR professoriate make it out.

For more information, the conference web site is here.  And, good luck !

* There may be others looking, these are the only two schools I know of.

 

Reminder – ABA DR Section Annual Conference Proposals

Consider this a friendly reminder that the deadline for proposals for the ABA DR Section Spring Conference is September 5th.  The conference itself will take place on April 15-18, 2015 at the Westin hotel in Seattle, Washington.  According to a recent ABA DR Section email:

The Section of Dispute Resolution seeks proposals for cutting-edge, timely programs with excellent speakers and presentation materials, on issues that will enhance attendees’ professional skills and knowledge.

 

For Spring Conference Proposal Instructions, visit the Section’s home page at www.americanbar.org/dispute.

Best of luck with your proposals.

 

Sternlight – New Executive Order Blocks Mandatory Employment Arbitration

FOI Jean Sternlight (UNLV) provides us with this guest post on the President’s recent actions on employment arbitration.

President Obama today signed a new Fair Pay and Safe Workplaces Executive Order refusing to grant government contracts of over a million dollars to companies who mandate their employees arbitrate disputes involving discrimination, accusations of sexual assault, or harassment.  This new order mirrors protections Congress already provided to employees of Defense Department contractors in 2011 in the so-called “Franken amendment.” The order also requires prospective federal contractors to disclose prior labor law violations and will instruct agencies not to do business with egregious violators.

While some will no doubt clamor that the President is overstepping his executive powers, this measure and more are well supported by the evidence of how mandatory arbitration impacts employees.  Rather than providing greater access to justice for employees, as some have claimed, empirical studies show the following:  (1) fewer than two thousand employees file arbitration claims each year, though millions are covered by mandatory arbitration clauses; (2) had these employees not been covered by mandatory arbitration thousands more could have filed individual suits or class actions in court (3) the imposition of mandatory arbitration makes it harder for employees to obtain legal representation; (4) companies are increasingly using mandatory arbitration to prevent employees from joining together in class actions, though class actions are essential to protect employees who fear retaliation, cannot feasibly file individual claims, or may not even be aware their rights have been violated (5) when employees do file claims in arbitration they do far worse than they would have done in court, whether one measures win rates or amounts of money won; (6) pro se employees do not flock to arbitration, and when they do file they don’t do well in arbitration.

In sum, the new executive order is at least a good start towards providing employees protection from mandatory arbitration. This order far from solves the problem of mandatory employment arbitration.  It only covers employees of companies with large government contracts, and it only proscribes mandatory arbitration as to certain kinds of claims.   The order will not for example protect employees who might seek to litigate Fair Labor Standards Act overtime claims in a class action in court.  Nonetheless, in recognizing the significant problem posed by mandatory employment arbitration the new order may lead the way towards passage of the badly needed Arbitration Fairness Act.  Fingers crossed!

Call for Papers – Elder Dispute Resolution

Lisa Blomgren Amsler (Indiana) sends alog this call for papers from Conflict Resolution Quarterly.

———————-

Conflict Resolution Quarterly publishes scholarship on relationships between theory, research, and practice in the conflict management and dispute resolution fields to promote more effective professional applications. Conflict Resolution Quarterly is sponsored by the Association for Conflict Resolution.

This call for papers is designed to elicit a thoughtful examination of trends, opportunities, challenges and case studies of dispute resolution and conflict management principles applied to the prevention or resolution of disputes involving elders. These could include:

  • An analysis of trends in the use of elder mediation inside or outside of the court system. This includes disputes over guardianship and care planning, but is meant to also be broader in scope.
  • Proposed qualifications, experiences, skills, characteristics or abilities of mediators or conflict management specialists who work with elders.
  • Analyses of disputant and third party behavior, preference, and reaction to conflict situations and conflict management processes in elder cases as opposed to other types of cases.
  • Evaluation of the success of elder dispute resolution programs or processes.
  • Discussion of key components in the training of elder dispute resolution specialists.
  • Suggested methods to expand the use and quality of elder mediation and related services.
  • Innovative process or programmatic elements in elder conflict prevention or management systems.
  • A comparative analysis of elder mediation/ADR outside the US context or across states.

All articles should reflect an understanding of previous discussions in the literature on the chosen question (a literature review), include a 100 word abstract, and be approximately range from 2500 to 7500 words in length. CRQ uses a double-blind peer review process to assure fair and equal access to all authors.

Submissions received on or before August 1, 2014 will be considered for a colloquy edition on elder issues, but submissions are accepted year round.

For information on manuscript preparation, go to:

http://onlinelibrary.wiley.com/journal/10.1002/(ISSN)1541-1508

All submissions are to be made electronically via this website:

http://mc.manuscriptcentral.com/crq

Susan S. Raines, Ph.D., Editor-in-Chief, CRQ, Professor of Conflict Management, Kennesaw State University, sraines@kennesaw.edu