Newell on Redefining Attention

Lauren Newell (Ohio Northern) has published “Redefining Attention (and Revamping the Legal Profession?) for the Digital Generation” on SSRN. The abstract:

With computers, text messages, Facebook, cell phones, smartphones, tablets, iPods, and other information and communication technologies (“ICTs”) constantly competing for our attention, we live in an age of perpetual distraction. Educators have long speculated that constant exposure to ICTs is eroding our ability to stay focused, and recent research supports these speculations. This raises particularly troubling implications for the practice of law, in which being able to pay sustained attention to the task at hand is crucial.

Research also indicates that the brains of today’s young people, the “Digital Generation,” may function differently than the brains of their elders because the Digital Generation have grown up immersed in digital technology. This suggests that the techniques today’s legal professionals might use to cultivate attention in the face of technological distraction could prove to be inappropriate for future generations of lawyers. When the Digital Generation are both the attorneys and the clients, it may be the practice of law — rather than the lawyers — that needs to change.

This paper explores the science of attention and explains why attention is important. Next, it introduces the Digital Generation and their relationship with digital technology. It then examines the connection between ICT exposure and attention and reviews several suggestions that others have made about how legal professionals should respond to the challenges ICTs pose to focused attention. This paper then takes the conversation in a new direction: It predicts ways in which the legal profession, rather than the legal professionals, will necessarily have to adapt to technology in the future. Finally, it offers thoughts about how the legal profession should view its relationship with technology going forward.

Strong on Arbitration and Other Topics

Over the past year Stacie Strong (Missouri) has been publishing a tremendous number of pieces in the area of arbitration, among other things. See here for some of these pieces. Now that I’m teaching Conflicts of Law, I found “Recognition and Enforcement of Foreign Judgments in U.S. Courts: Problems and Possibilities” particularly compelling. Here is the abstract:

One of the core consequences of globalization has been the rapid increase in transnational litigation and the associated need to enforce judgments across national borders. This phenomenon has created a number of problems in cases involving U.S. parties, since foreign judgments brought to the United States do not fall within the confines of the Full Faith and Credit Clause of the U.S. Constitution. Rather than following the simple, easy and inexpensive judgment-recognition process used in domestic disputes, U.S. and foreign parties seeking to enforce a foreign judgment in the United States must adhere to a costly, complicated and largely unpredictable process that is governed almost entirely by state rather than federal law.

The current situation creates difficulties not only as a matter of civil procedure but also as a matter of constitutional and regulatory law. International trade and foreign affairs also suffer when a country fails to recognize and enforce foreign judgments in a predictable and principled manner.

The American Law Institute (ALI) has responded to the challenges in this area of law by drafting a proposed federal statute intended to overcome the various problems relating to enforcement of foreign judgments in the United States. However, the complexity of this area of law has precluded detailed discussion of the ALI recommendation to date.

Forthcoming revisions to the Restatement of Foreign Affairs make enforcement of foreign judgments an issue of critical and imminent importance. This Article fills the gap in critical commentary by undertaking a detailed analysis of the law relating to the recognition and enforcement of foreign judgments in the United States. The discussion not only considers the current enforcement regime but also provides a comprehensive assessment of the ALI’s proposed statute. In so doing, this Article provides courts, commentators and Congress with a full understanding of the various problems arising under existing law as a matter of practice and policy while also helping lawmakers determine whether and to what extent the ALI proposed statute meets its enunciated goals. Parties based in the United States and abroad also benefit from an increased understanding of the problems and possibilities relating to the recognition and enforcement of foreign judgments in U.S. state and federal courts.

ADR + LRW

I’m in sunny Las Vegas with our friends from the Saltman Center (ten years old!) attending the SALT Teaching Conference. For the conference, I co-submitted a proposal with Suzanne Rowe, the director of Oregon’s Legal Research and Writing (LRW) Center, so today I’ve been hanging out with LRW types. Here are some things I’ve learned about LRW professors:

  • They are passionate about pedagogy.
  • They are student-centric — equipping the students for practice is their primary goal.
  • They are institutional team players.
  • As such, they are often the ones tasked with carrying out innovations and weighty administrative reforms.
  • And even so, they are often under-valued in their faculties. Many are not eligible for tenure, for example, and their work is considered less important than what “real” law professors do.

Sound familiar? Listening to LRW people talk to one another about their work at their institutions is a lot like listening to us (ADR people) talk about ourselves and our institutions. Yet I am not sure if the ADR and LRW communities are as connected as these similarities would suggest. Perhaps we could benefit from greater affiliation with LRW.

Two possibilities come to mind. First, we in ADR should consider attending certain LRW conferences, and vice versa. From what I heard today, it sounds like these events are rich sites of information on pedagogical innovations replete with instructional sheets, sample exercises, classroom strategies, and the like. Fortunately for me, the next Legal Writing Institute (LWI) is taking place in Portland — if anyone wants to check it out with me, let me know!

Second, I think we in ADR should look for opportunities to collaborate with LRW when possible. Lawyers and professionals who go into conflict resolution need not only negotiation and mediation skills, they need to be proficient writers. And this writing goes beyond briefs and memos — the ADR professional may need to write op-eds, fact sheets, newsletters, articles, white papers, blog entries, short pieces, press releases, emails, conflict assessments, and other pieces that inform, persuade, or advocate.

Along these lines, I recently collaborated with one of our LRW professors (Megan McAlpin) on an exercise for our master’s students in conflict resolution. Here at Oregon we have an ongoing commitment to training our graduate students to become better writers, so I thought that having more involvement from LRW could be a great boon. Most of these folks are not JD students, though, so we can’t just enroll them in our LRW classes as they exist today.

As a first step, therefore, Megan and I put together an exercise that has LRW and ADR components. It is a three-hour exercise but can be trimmed or expanded, depending on your needs. If you would like a copy of the exercise, please email me (jwr at uoregon.edu). We are hoping that this first effort will be the beginning of a larger collaboration that benefits not just non-JD students (by providing them with the attention of a legal writing professor) but also JD students (by developing more differentiated writing curriculum).

Invitation to a MOOC

From FOI Noam Ebner:

Hi everyone,
In a couple of weeks, I will be kicking off an educational adventure down a very unclear path, and I’d like to extend an invitation to all of you to join me.

Between Oct. 17th and Nov. 20th, I will be teaching a basic negotiation course, offered as a MOOC, entitled Negotiation: Navigating Personal and Professional Interactions.

For those of you who have happily managed to avoid the debates roiling across numerous op-eds on this topic, a MOOC is a Massive Online Open Course. In such a course, an educator offers an online course to the world at large, on an internet-based learning platform. However, this is not your typical (can I say “traditional” yet?) format of online learning: Anyone in the world with an internet connection can take the course. There are no prerequisites or screening procedures. Students do not need to belong to your university, or to any university at all. No tuition is charged. Courses do not, for the most part, provide academic credit, although some offer a certificate of completion. Hundreds, or thousands, of students participate in the course from all around the world.

I hope to use this course to begin to figure out whether and how these courses might fit into the educational toolbox of the fields of negotiation and conflict resolution education. Can our material be taught through this medium? How can it best be taught? To what other uses might we put this vehicle, or the materials created for them?

I’d love for you to help me figure those and other questions out. In the spirit I’ve learned from the Rethinking Negotiation Teaching Project, I view this course, to a large extent, both as a laboratory to experiment with methods – and as an aquarium, in which the efficacy of these methods can be viewed from the outside by as many teaching experts as possible. In that sense, I happily pose this course as a dartboard, hoping that others will be willing to cast well-intended and -aimed darts of suggestions for improvement.

You can register for the course by clicking here (it takes only a few seconds to register). The site will then send you a reminder and an invitation to check in, when the course goes live.

I can’t even begin to tell you how much I’d appreciate your thoughts and comments on this – to say nothing of how happy I’d be to see you actually engaging in the class.

Noam

Fox on Reimagining Reflexive Dispute Resolution Practice

Ken Fox (Hamline) has published “Mirror as Prism: Reimagining Reflexive Dispute Resolution Practice in a Globalized World” in Washington University Journal of Law and Policy, available here. The abstract:

Private dispute resolution processes are an increasingly established global phenomenon. Some processes, like international commercial arbitration, have been formally in pace for more than a century and draw upon clear principles of law and contract. Arbitrators and parties are guided by relevant treatises, procedural rules, and well-settled practices. Other international dispute resolution processes, like negotiation, mediation, conciliation, and conflict coaching, similarly have a long history and some process guidance. However, by their very nature, these non-adjudicative, cooperative processes are multidimensional, fluid, and complex. They require the intervener, parties, and their representatives to engage with one another in ways that go beyond the law and well into the realm of human relations. In order to make the best use of such cooperative processes, interveners, parties, and representatives – hereafter “conflict practitioners” – draw upon knowledge, insights, and skills related to communication, culture, history, language, philosophy, psychology, and sociology, among many other fields. They also draw upon their own professional and personal lived experience.

As cooperative private international dispute resolution practices become increasingly common, it is tempting for conflict practitioners to assume that the human relations insights, skills, and practices that worked well for them at home will be equally effective (and appropriate) in an international, cross-cultural environment. However, exporting the ways we understand and interact with others in conflict form a domestic environment into new and different legal, political, economic, cultural, and social environments can be problematic. At best, exporting our set ideas and practices can lead to missed insights and lost opportunities for better solutions to the disputes at hand. At worst, this practice can exacerbate disputes, causing greater confusion, more deeply entrenched conflict, and less likelihood of resolution. As a result, attending to the human dimension of conflict and interaction should be a central part of global negotiation and dispute resolution practice. That is the focus of this essay.

Working in the global dispute resolution environment puts into clear relief the need for conflict practitioners to be attuned to themselves and to their counterparts in ways that might not have been apparent in local practice. As mentioned above, this attunement goes beyond technical legal knowledge and skills. It also includes being attuned to the subtle and complex human, cultural, linguistic, and other relational dimensions of working across social worlds. One way to be so attuned is to develop reflective and reflexive practice – intentionally seeking to learn and grow from one’s past experience (“reflection-on-action”) and developing multiple dimensions of awareness as the conflict interaction actually unfolds (“reflection-in-action”).

This essay focuses on these two dimensions of reflective and reflexive practice, In the next part, the author discusses the nature of reflection-on-action and reflection-in-action from a modernist (“reflective”) and postmodern (“reflexive”) perspective. These modern and postmodern concepts of reflective and reflexive practice parallel a growing trend in the conflict literature from a “modernist” to a postmodern or “social constructionist” orientation to understanding conflict itself.

In the final part, the author examines how engaging with practice reflexively reveals additional dimensions of awareness about ourselves, other parties, and the conflict context. I then bring together the elements of reflective and reflexive practice to articulate a more holistic conception of “awareness” that can help conflict practitioners more purposefully learn from past experience and develop greater awareness as conflict interactions unfold.

Tippett on Child Abuse as Employment Dispute

Liz Tippett (Oregon) has published “Child Abuse as an Employment Dispute” in Quinnipiac Health Law Journal, available on SSRN. The abstract:

Child abuse has traditionally been viewed as the exclusive province of the child welfare system and the police. But when child abuse accusations are made against an employee, such as a teacher or a childcare worker, it is also an employment law problem. The employer must decide how to respond to the accusations and whether to retain the employee accused of abuse. The employer’s role becomes especially important when the child welfare system declines to take action following a report of abuse, or when the alleged conduct is insufficiently abusive to trigger a mandated report to the state.

Ignoring the employment law dimension of child abuse and mistreatment has proven problematic for employers, the accused employees, and the children in their care. Courts and labor arbitrators often inadvertently discourage employers from adopting better internal processes for preventing and mitigating child abuse and mistreatment. Employers who naively defer to child welfare determinations in their contracts and policies can find themselves hamstrung when they later find it necessary to discipline an employee notwithstanding state inaction. Passive employers also harm their employees by failing to provide notice and training on acceptable forms of workplace conduct.

A regulatory system that encourages employers to play a more active role could benefit children and their parents. Workplace-specific policies and practices can be crafted and updated in consultation with the preferences of their constituent parents. Children may be less likely to be harmed where an employer implements robust processes for preventing and addressing abuse and mistreatment.

Menkel-Meadow on Other Forms of Justice

Carrie Menkel-Meadow (UC Irvine) has published “Unsettling the Lawyers: Other Forms of Justice in Indigenous Claims of Expropriation, Abuse, and Injustice” in the University of Toronto Law Journal, available on SSRN. The abstract:

This article considers, from the experience of the Indian Residential Schools Settlement, the limitations of the current formal justice system and the common ways that lawyers and parties act within it. Looking at the combinations of lawsuits, settlement negotiations, structured compensation schemes, truth and reconciliation processes, and memorial and education programs now provided for in the IRSS, the article suggests that we may need ‘process pluralism’ and different orientations to deal with modern mass harms: now recognized harms (like loss of culture, family, language, as well as physical, mental, and social injury) that the formal legal system has not yet developed the capacity to address. Placing the IRSS in a larger international context, the article suggests that some legal and social recognition of ‘new’ human harms and injuries has necessitated the development of different legal and quasi-legal processes. Whether called ‘restorative,’ ‘transitional,’ or ‘alternative’ justice, new forms of dealing with wrongs, harms, and conflicts will require redesigning legal processes and institutions; legal professional education; and social, cultural, and philosophical orientations to human injuries and ‘redress.’ Not all who are injured (both individually and in groups) want or require the same ‘remedies,’ and our conventional and historical common law and adversarial system must be adapted to the diverse needs of those who are injured by past and unconscionable wrongs, especially when inflicted by major governmental, religious, and civil society institutions and practices.

Using technology wisely in the classroom

From FOI and TG (tech goddess) Alyson Carrel: Many of you might have seen the articles about the new research showing that taking notes by hand is better than taking notes on a laptop.

I know many of our law schools have been having this discussion – do we or do we not allow students to use laptops in the classroom. But I’d like to encourage us to expand the discussion from whether or not we allow students to use laptops to the discussion of how we better integrate emerging technology in our classrooms. Typing lecture notes on a laptop may be a poor substitute for taking notes by hand, but laptops aren’t just for note taking. They also have the potential to enhance student engagement and comprehension of material if used in a pedagogically sound way. And as the practice of law changes with advances in technology, it makes sense to integrate technology in our classroom when we can.

Although I’ve historically had a laptop ban in my classes, I’ve worked with NU’s Emerging Technologies Librarian, Kara Young, to design projects and teaching methods that require students to open up their laptops and even go online. For instance, I regularly have students use their laptops in class to complete self-reflection questions I posted online using Google Forms. As each student completes their reflection, their individual responses are automatically collated into a single spreadsheet I can access and quickly gauge student understanding of the material. I also regularly have students access Google Sites where I have posted videos, texts, and questions that they must then answer. Working in groups, they upload answers to the Google Site that then other groups of students can access, view and comment on.

I couldn’t agree more that laptops can be distracting in class and a poor method for taking notes. But as the practice of law changes to incorporate more and more technology, it seems odd to tell students technology has no place in our classroom. We have plenty of colleagues who similarly ban laptops in the classroom, and there are other schools that have disabled wireless access in their classrooms to limit the disruptive nature of laptops. But I’d argue we can all do better than that. Even if a poor note taking machine, laptops with access to the internet can enhance student learning in other ways.

How will tomorrow’s lawyer compete with technology?

From FOI Alyson Carrel:

In the article Machines v. Lawyers, Northwestern Law Professor John McGinnis argues that the advancement of technology and ability of machines to complete more complicated tasks is the blame for our recent decline in law school admissions. He says that while many blame the recession, “the plight of legal education and of the attorney workplace is also a harbinger of a looming transformation in the legal profession.” By replicating the work that lawyers do, he says that technology is changing the market not only with more efficient practices, but effectively shrinking the need for new lawyers. His examples include the use of predictive coding in e-discovery, aggregators to do complex case analysis, and the ability to automate will creation and even complex contracts thanks to advances in technology.

So how we do we prepare our students for the changing legal market, to make their skills relevant again and distinguish them from the machines so increasingly used to replicate legal tasks? One idea McGinnis posits is focusing more on problem-solving skills and negotiation. He writes:

To match the wide variety of tasks that lawyers will undertake in a world increasingly defined by machines, law schools will need to differentiate themselves in cost and function. No longer can every school aspire to be a junior varsity Yale. Some schools will ask faculty to teach more, even at the expense of legal scholarship, or use adjuncts who write no scholarship, thereby slashing costs. Many schools will substitute videos for some live instruction. They can then redeploy some professors to focus on improving legal writing and problem-solving skills. Negotiation may get more emphasis, as it contains emotional elements that machines cannot easily replicate.

He’s right and it is encouraging to hear others outside the ADR world say it. We all know technology presents a profound shift in many aspects of society. As legal educators, we discuss how best to teach our students emerging technology –how to teach best practices about could computing and confidentiality, or social networking and professionalism, or how to counsel clients about e-discovery. While a machine can now aggregate great amounts of information in a short period of time to provide better case analyses and more accurate BATNA analysis, we still need great problem-solvers to craft the unique solutions tailored to meet the unique problems of unique individuals.

Tales from middle school

My eighth-grade daughter came home yesterday and told me the following:

Each day in English they have homework, a quiz, or a test in class. After finishing, they put away their pencils, take out red pens, and grade their own work themselves as the teacher calls out the answers.

My daughter sits next to a kid (let’s call him Sam) who, for at least the past week, has been clutching a piece of mechanical pencil lead in his hand during grading, so that he can surreptitiously write in the correct answers when the teacher announces them. My daughter said that she didn’t know how to handle it; she didn’t really want to involve the teacher, and she didn’t know what to say. Yet it was making her angry.

Yesterday they were grading an in-class test and Sam was writing in answers when the teacher came to a question that, as it turned out, my daughter got wrong. Sam started writing in the correct answer. My daughter said that without thinking, her hand shot out and she grabbed him by the wrist. With her other hand, she wrenched his fingers open and took out the lead. She broke the lead in two and threw the pieces on the floor. Then she said to him: “That is enough.” This was in the middle of class, so it all happened pretty quietly and she said no one seemed to notice. For his part, Sam didn’t say anything, but my daughter said that he went back with his red pen and marked wrong every one of the answers he had penciled in.

I had my daughter recreate the force with which she grabbed his hand, and it was pretty forceful. She seemed at peace with the whole thing, and it sounded like Sam was okay too. As a dispute resolution professor, I wondered what advice I would have given her had she talked to me in advance. I might have told her to tell the teacher or try talking with Sam in a kind and understanding way — but I know I wouldn’t have recommended that she wrest away the lead and break it. Yet I think her response was well tailored to the situation, insofar as it upheld group norms (no cheating) in proximity to the event (as it happened) and without excessive shame (involving authority figures or others). And honestly, I believe that there was something important (humanizing? dignifying?) about the violence/physicality of the action. Could it be that some level of violence, in the sense of physically getting in each other’s space, is essential to community?

Booklist from the ABA DR Annual Meeting

At the recent ABA DR Annual Meeting, we had our second installment of the “What I’m Reading” panel. I promised a reading list from panelists and participants; here it is:

  • Americanah (Chimamanda Ngozi Adichie)
  • Shop Class as Soulcraft: An Inquiry into the Value of Work (Matthew B. Crawford)
  • Nine Lives: In Search of the Sacred in Modern India (William Dalrymple)
  • The Selfish Gene (Richard Dawkins)
  • Mindwise: How We Understand What Others Think, Believe, Feel, and Want (Nicholas Epley)
  • The Improbability Principle: Why Coincidences, Miracles, and Rare Events Happen Every Day (David J. Hand)
  • Thinking Fast and Slow (Dan Kahneman)
  • Dissident Gardens (Jonathan Lethem)
  • Homesick (Eshkol Nevo)
  • Join the Club: How Peer Pressure Can Transform the World (Tina Rosenberg)
  • The Goldfinch (Donna Tartt)

Alkon on the Supreme Court and Plea Bargaining

Cynthia Alkon (Texas A&M) has published “The U.S. Supreme Court’s Failure To Fix Plea Bargaining: The Impact of Lafler and Frye” in the Hastings Constitutional Law Quarterly, available on SSRN here. The abstract:

Virtually every criminal conviction in the United States is the result of a guilty plea, not a jury trial. Yet it was not until 2012, in the companion cases of Lafler v. Cooper and Missouri v. Frye, that the U.S. Supreme Court recognized a defendant’s constitutional right to effective assistance of counsel during plea bargaining. Legal commentators suggested that these cases were “the single greatest revolution in the criminal justice process since Gideon v. Wainwright.” But will things really improve for defendants in the wake of Lafler and Frye? The simple answer is no. Lafler and Frye will not bring fundamental change because these cases fail to address structural problems in plea bargaining and instead focus on single instances of bad lawyering.

In Lafler and Frye, the Court failed to address systemic problems in the appointment of indigent defense counsel and the extraordinary power that prosecutors wield in the plea bargaining process. Both of these structural problems significantly affect whether the plea bargaining process is fundamentally fair for the average defendant. Lafler and Frye may lead to an expansion of some limited rights for defendants in plea bargaining, such as better definition of the obligations of individual defense lawyers in the client-counseling phase of plea bargaining. However, as this Article will explain, addressing individual attorney misconduct will not make plea bargaining substantially different for most defendants. Instead of being revolutionary, Lafler and Frye will more likely simply allow the criminal justice system to continue plea bargaining nearly every case without addressing the larger structural problems. Most defendants in the criminal justice system will continue to feel pressured to enter quick guilty pleas to avoid the serious possible consequences of trial, regardless of whether they are innocent, have a defense, or fully understand the rights they are waiving and the consequences of their guilty plea.

Followup from ABA Conference: Critical patience and pedagogy

Last week was the whirlwind ABA Section on Dispute Resolution annual conference in Miami. At the conference, I presented an exercise in “critical patience” designed to promote the kind of deep attention and focus that law school and dispute resolution practice require–and that, so often, excessive technology use (skimming, surfing) can degrade.

Here was my inspiration: Jennifer Roberts, art history professor at Harvard, speaking on cultivating “deep attention” in students through intentional “deceleration” in teaching and assignments. Roberts observes that her students expect that learning (especially visual learning) should be immediate and so do not know how to take time with the material. She argues, therefore, that professors must teach students how to take that time, to learn “strategic patience” as a critical skill in mastering their field of study.

Roberts’s comments resonated for me because my students expect to understand cases immediately and seem frustrated by what they perceive as needless complexities, archaic language, convoluted argumentation, etc. I worry that my students believe that superficial responses are good enough and that this belief is bolstered by the rapid-fire pundit-driven political scene that they think constitutes policy debate. This made me wonder whether there are ways–similar to Roberts’s pedagogical strategy of instructing her students to sit for three full hours looking at a particular painting before writing about it–to teach our law students how to be more patient, observant, thoughtful, attentive, and curious about what we read.

So last semester I experimented with deceleration in civil procedure. One day in class I asked my students to put all their materials under their desks except a pen. I then handed out an excerpt from Federal Rule 12 and told them that we were going to look at the rule in silence for 20 minutes. They looked aghast. I told them they could make little notes on the margin if they wanted.

As we started on this exercise, I felt a wave of anxiety but decided to power through. For the first five minutes, I fidgeted and fretted and wondered if I should just cut them off at ten minutes. Then I thought, hey, I should probably read the Rule too, even though I’ve read it a million times. So I started looking at it and noticed some interesting things: one sentence starts with “But” — that’s kind of strange. Why would the drafters structure it that way? What is the rhetorical impact of starting with that instead of appending it to the sentence before? Would the meaning change if it were structured differently? Then I noticed that a phrase is repeated in two places with one tiny change in language, which made me wonder: is there a difference between these two sections and if so, what? Before I knew it, 20 minutes had passed and I told the students that time was up.

The interesting thing: we then discussed what we noticed about the Rule, following up with a worksheet with short hypos designed to test the various provisions of the Rule. They completed the worksheet without difficulty, in stark contrast to previous classes in which I had given the worksheet after they (supposedly) read the Rule before class. Afterward (and on my evaluations) they told me what a valuable exercise it had been.

I think I will try something similar in my next Negotiation class, but instead of a statute I will choose some visual art and assign them to look at it for a longer time, like Roberts does. Afterward, we can talk about the importance of patience and observation in dispute resolution and dealmaking.

Lande on Advancing Negotiation Theory

John Lande (Missouri) has posted “A Framework for Advancing Negotiation Theory: Implications from a Study of How Lawyers Reach Agreement in Pretrial Litigation” on SSRN. The abstract:

The prevailing negotiation theory tries to fit lots of square pegs into just two round holes – adversarial or cooperative bargaining. In the real world, negotiation comes in many different shapes, not just circles and squares. Analyzing law school textbook definitions of the traditional models, this article demonstrates that the two “round holes” in current negotiation theory are poorly defined. It also presents empirical accounts of actual pretrial negotiations to demonstrate that the theoretical models do not fit some real-life negotiations. It argues that it is time to replace the traditional models with a flexible framework that can accommodate virtually all legal negotiations and it uses cases from this study to illustrate the proposed framework. Instead of focusing only on bundles of characteristics for each theoretical model that are assumed to be highly correlated with each other, the framework unbundles the variables, which permits more accurate description of negotiations. The variables in the framework are: (1) the degree of concern, if any, negotiators have for the other side, (2) the communication process used in trying to reach agreement, (3) the extent that negotiators create value in the negotiation, (4) the negotiators’ tone and tactics, and (5) the source of norms that negotiators use. These variables are likely to be causal factors affecting particular negotiation goals such as efficiency and satisfaction of parties’ interests. The conclusion discusses implications and recommendations for academics, practitioners, and instructors.

Non-binding Christian mediation

The NYT reports today on “the Matthew process,” a form of Biblical dispute resolution based on a passage from the Gospel of Matthew in which Jesus says that disputants should attempt to resolve their dispute privately, and if that doesn’t work to bring “one or two others” into the process. The particular dispute covered in the story is the $2.2M lawsuit of Edward O. Blews Jr., the recently removed president of the Council for Christian Colleges and Universities. Blews’s contract states that he must first try to resolve the dispute using the Matthew process and, if that doesn’t work, to then try non-binding Christian mediation. According to the Times, organizations such as “Peacemaker Ministries” have emerged to support this trend:

Peacemaker Ministries offers templates of legally binding language that Christians can put in contracts, requiring employees and managers to use a “biblical process” before going to civil court. The group coaches employers in resolving disputes, and should a conflict persist, Mr. Sande said, a Peacemaker Ministries representative could serve as one of the “one or two others” Jesus suggests you take to a mediation.

I would be interested to know more about how closely these processes hew to more conventional/secular mediation processes. Anyone have any experience here?

Check out the Transnational Dispute Management Journal

The Transnational Dispute Management (TDM) Journal announces its new volume, Reform of Investor-State Dispute Settlement: In Search of a Roadmap. From the TDM publisher:

TDM focuses on the forms, methods, strategies and implications of transnational dispute management: commercial and investment arbitration, mediation, negotiation, including the culture of arbitration, economic analysis and organisational and managerial techniques. We are always interested in receiving articles, papers, speeches and presentations for (re)publication in our TDM Journal. Feel free to contact us for more information and guidelines on how to submit material.

Details on submission to the TDM Journal may be found here.

Sheila Heen providing expert advice in the NYT

Sheila Heen, co-author of Difficult Conversations: How To Discuss What Matters Most, is providing expert advice in a series of columns on family and other kinds of conflicts. Here’s one of my favorite passages from this week’s column — she’s explaining some of the reasons people experience conflict so differently:

Emotional math. Everyone gets frustrated, resentful, disappointed, or even enraged with others on occasion. It may come out as shouting, sarcasm, snippiness, or simply a put-upon silence. In those moments, we don’t see our emotional behavior as a big deal. They’re the ones who were being unusually annoying, it was a tense situation, you were tired. You know that your anger in that moment is not who you “really are.”

But to the other person, your anger is exactly who you are. Your emotional display is not incidental – it’s at the heart of the story they tell of what happened between you. From their point of view, your anger is the threat – the very thing they were coping with in that moment.

So you will tend to subtract your own emotions from the story, while the other person counts your emotions, say, double. And the same is true in reverse: You count their emotional reactions double, while they subtract them.

Hat tip to Liz Tippett.

Call for papers: Indian Journal of Arbitration Law

From Mohit Maheshwari, senior editor of the Indian Journal of Arbitration Law:

The Indian Journal of Arbitration Law is a biannual, student-reviewed Journal by the Centre for Advanced Research and Training in Arbitration Law (CARTAL) of National Law University, Jodhpur.

The Journal strives to inculcate the prevalent theories in the field of arbitration with their practical relevance. The editorial board seeks to achieve this feat by including contributions from individuals with varied expertise of practicing arbitration and by focusing on developing trends. In this regard, the board would give due emphasis to the rich thought processes of students of law, who bring to the forefront the innovative academic research currently underway in most law schools all over the world. Inclusion of changing regional trends will play a vital part in understanding the scope and extant of this discipline and would therefore find due importance in the Journal.

The Indian Journal of Arbitration Law is pleased to announce its upcoming issue (Volume 3: Issue 1), which is to be published in March next year on the following theme: “The Rise of Asian Arbitral Institutions and its Impact on International Arbitration.”

We would be happy to review papers on contemporary international arbitration law in the Asia-pacific region, even those that are not specifically related to the above mentioned theme.

The Board of Editors cordially invites original, unpublished submissions for publication in the following categories:
- Articles
- Notes/Comments
- Book Reviews

Manuscripts may be submitted via email to editor.cartal@gmail.com latest by 31st January 2014.

For further details regarding Editorial policy and submission guidelines please visit this site.

Ebner on Negotiation via (the New) Email

Noam Ebner (Creighton) has posted his new article, Negotiation via (the New) Email, to SSRN. The abstract:

While certainly one of the most familiar modes for online communication, email is a constantly shifting entity. This chapter explores common pitfalls encountered in negotiating via email as well as advantages the medium offers, and offers best practices for negotiating through this communication channel. In a significant update to the existing literature, this chapter describes the changes that the email medium itself, as well as its users, have undergone in recent years, with the proliferation of smartphones and other platforms for mobile communications. These changes have redesigned the map of challenges and advantages posed to us as we negotiate via email.

Tippett on Mediation a la Carte

Liz Tippett (Oregon) has posted a short abstract outlining her new project, Mediation a la Carte: Improving the Transparency and Diversity of Mediator Styles. It is a must-read for those of us interested in the implications of the various approaches available to mediators and disputants. You can review her abstract here.