End of Semester Teaching Tools

I wanted to share another favorite end-of-semester teaching tool as we are winding down the semester.  Last year I wrote about negotiation recipes for success (post here) and shared examples of a negotiation cookbook from other teachers. So I wanted to share some of my favorite examples from students as examples of how well this works with students.

The Magical Master Negotiator Potion

1 Tbsp. Gut instincts

1 Tbsp. Confidence

1 tsp. Knowing Why You’re Right (the law; social, political, or economic norms; facts; figures)

1 Tbsp. Respect for your counterpart

1 c. Listening

½ c. Empathy for your client and counterpart’s client

1 c. Interest in interests

¾ c. Creativity

1 c. Core skills (listening, acknowledging emotion, reframing, summarizing, questioning)

1 Tbsp. Sass

1 tsp. Smile and a Firm Handshake

Beat on high, until mixed: gut instincts, confidence, knowing why you’re right, and respect for your counterpart.  Set aside.

In a separate bowl whisk listening, empathy, interest in interests until blended.   Then slowly add in creativity and core skills.

Add the mixture of courage, confidence, knowing why you’re right and respect to the bowl of whisked ingredients until you can no longer tell the difference between the two mixes.

Pour into margarita glass. Garnish with sass, a smile and a firm handshake.

 

Negotiation Cake Recipe

Total Time: Contingent on the circumstances. You get out what you put in.

Preparation Time: The larger portion of time should be devoted here to make the cooking go smoothly.

Cook Time: Directly relates to the oven (setting) and the number of dessert chefs (counterparts) working on the dish at one time.

Ingredients

Preparation (1 Cup)                 Research (1 Cup)                    Stubbornness (1/4 Cup)

Collaboration (1/2 Cup)          Humor                         Patience (2 teaspoons)

Empathy (1 ½ Cups)               Silence (1 teaspoon)                Optimism

Interests (up to 5)                    Comfort (2 Tablespoons)        Confidence

Persistence (1 teaspoon)          Creativity (1 Cup)                   Listening Skills (2 Tablespoons)

Directions

Preheat the oven to 350 degrees F. Get to know the kitchen and get comfortable in your setting.  Research your fellow chefs prior to preheating the oven. This will help you predict your interactions throughout the baking process.

Cake:

In a large bowl, sift together prepared information and research (1C each). Crack your barrier shell on the edge of the bowl and add their core interests (up to 5). Mix until a smooth strategy has formed.

In separate bowl combine collaboration (1/2C), listening skills (2 Tbsp), creativity (1C), patience (2 tsp.), empathy (1 1/2 C), and stubbornness (1/4C). Taste ingredients to ensure that the stubbornness does not overpower the collaboration and the listening skills are prominent.

Combine the strategy batter with the skills mixture and divide the batter equally amongst cake pans. Place in the oven for 30 minutes. Poke the cake with a toothpick to make sure it is solid enough for layering.

Frosting

In a bowl, combine comfort (2 Tbsp.), silence (1 tsp.), and persistence (1 tsp.). Boil the mixture over a saucepan filled with boiling water. Stir the mixture until the nerves and anxiety have boiled out, leaving a thick frosting.

Cover each layer of cake with frosting and stack the remaining layers. Sprinkle the top layer with a dash of humor, optimism, and confidence. Refrigerate the cake for 3 hours before serving to counterparts. Take breaks from baking when needed. Alter the recipe with experience.

 

Negotiation Resolution Pie

This recipe is crafted to create a well-balanced negotiation process that is both nutritious and tastes good to all parties.

Ingredients

2 cups              Creativity

2 cups              Conflict

1 cup               Trust

¾ cup              Empathy

¾ cup              Assertiveness

1 cup               Flexibility

1 tsp                Legitimacy

1 tsp                Clarity

1 cup               Ethics

1 tsp                Feedback

Directions

  1.  First put Conflict and Creativity in a large mixing bowl.
  2. Lightly mix together and let sit for 10-15 minutes.
  3. In a separate mixing bowl, add Empathy, Flexibility, and Trust. Stir for 1 minute, then pour over Conflict and Creativity in the large mixing bowl.
  4.  Add chunks of Assertiveness and mix vigorously.
  5.  Cook for about 35-40 minutes. Add Legitimacy, Clarity, and Ethics when necessary and stir occasionally.
  6.  When mixture has settled, let cool for 5 minutes and sprinkle feedback on top.

Talking about Ferguson

We have started the last week of classes in ADR this week and usually, at this time in the semester, I turn to the overarching subject of how to counsel clients when choosing among different dispute resolution processes.  I divide the class into small groups and ask them to pick a situation of mass harm–Katrina, BP Spill, other natural disasters or war or violence–and then think about how to design a process to handle this situation.  Last night, I took a deep breath, and asked the class to think about the situation in Ferguson.  [S/O to Nancy Welsh for forwarding an email from others encouraging law faculty to discuss Ferguson] So here is what I asked: How would you advise the parents of Michael Brown?  How would you advise the mayor of Ferguson (or, for that matter, the mayor of Milwaukee since we have had similar incidents)? How would you advise the store owners whose property was vandalized?  What processes should we create?  What have we learned about conflict and conflict resolution that might be useful when we are faced with a real conflict?

I am sharing this because I was worried about doing this–am I the “right” person to discuss this?  would the class discussion be respectful or harmful? how would students react?  And I imagine that others of us, as we enter the last weeks of the semester, might also be hesitant to engage in a conflict that is so raw and so difficult for many.

Let me just say that the conversation was active and interesting.  I teach 70 students at 7 p.m. at night and keeping them focused this semester has meant a lot of interactive and creative exercises.  But last night might just have been the biggest leap of faith I have taken in a while.

And it was totally worth it–a student later emailed to thank me for raising such a difficult issue in a constructive manner  As he put it, “so often people are afraid to address issues related to race and act as if nothing did not occur. …Thanks again as I could not have asked for a more timely and close to home subject matter.”

Happy to talk more if anyone wants more details on pedagogy.  And this is my pitch to take the leap of faith and discuss the “real world.”  Showing our students how to apply our tools to the biggest challenges of the day was well worth the risk.

Peace Be With You…And With You?

Under the heading of hard bargaining tactics gone bad (and bad lawyer advice), we can now add this story.  When a group of eight faculty members at the General Theological Seminary in Manhattan decided to stop working in order to protest their newly hired dean and president, Rev. Kurt H. Dunkle, all purgatory broke loose. Under advice of their counsel, the faculty wrote a rather strongly worded letter outlining their demands regarding the dean.  (See the nasty details of the dean’s behavior here).

Unimpressed with the tone of the letter, the Board of Trustees for the Seminary considered the letter, instead of the opening bid that the faculty intended, as a mass resignation.  They dismissed the eight faculty members (leaving the students at the Seminary with only two instructors.) In this case, the eight faculty members’ hard bargaining tactic to have their foul-mouthed, micromanaging (in their descriptions) dean dismissed ended up focusing attention on their perceived “bad” behavior rather than that of their dean.

Earlier this month, seven of the faculty members were reinstated (one of them accepted a severance package and moved on).  And only now, (finally) the faculty and board of trustees are using mediation to see if their interests can be met.

When we talk about expanding the pie, we should also be talking about shrinking the pie.  This is a great example of just that–and woe for the unlucky students. (Hat tip to my colleague Bruce Boyden for this awesome storyline)

Puffing Sucks

With no one to edit my language here :-), let’s call a spade a spade.  My thanks to John and Art for starting a really interesting conversation about puffery.  Teaching both ethics and negotiation, the crossroads of “puffing” in negotiation is something that I get to talk about twice.  And it drives me crazy.  It’s just a nice name–a nice label–for lying.  Lying, through and through.

There are so many problems with puffing.  First, the lines of “puffing” are supposed to follow convention–which completely subjective.  So the lines are unclear and and they continue to move.  You can lie about your client’s intent.  “They would never accept that offer” is okay.  But you better bring the offer back to your client.  You can vaguely lie about whether you have an alternative to accepting their offer. “We have other people interested in this shopping mall” is okay. But you can’t be too specific about the lie. “We have another buyer showing up tomorrow to give us the list price.” will get you in trouble. And the winner of confusion by far is the interplay between 1.6–keeping client informational confidential–and 4.1–you shall reveal information to prevent fraud.  We know from Art’s work (and class interactions–I run DONS every year in my ethics class), that law students and lawyers mess this up regularly and at alarming rates.  (For more on this see Art’s study here, my article on running DONS in China here, and an article from Art, Peter Reilly and me on teaching negotiation ethics here.)

Second, following the rules on puffing is bad negotiation advice.  Even when you ‘can’ lie according to the rules, it is most often really bad strategically to do so.  And by the rules allowing “puffing” (let along that 1.6 and 4.1 are in different sections of the ethics codes and should be rewritten to follow one another), we create the illusion that this is something lawyers are supposed to do.

I actually think the rules should be cleaner–no lying.  If you are asked a question you do not want to answer–for example “how low will you go?”  “do you have other options?” or “what does your client plan on doing with this property?” –don’t answer it.  Don’t lie. Chances are it will be obvious you are lying, or the truth will come out later anyway, or you did not actually need to lie but think it’s easier.  This line drawing–and the fact that puffing is so fuzzy–is exactly what gets lawyers into trouble in the first place.

I know I would enjoy teaching negotiation strategies on how to deflect awkward questions more than the lines of puffing.  I would also feel a lot better about our profession.  Because the fact that puffing sucks often leads the public to think the same way about lawyers.

Prisoner’s Dilemma Game Show

In class earlier this week, we rebooted the idea of the prisoner’s dilemma as previously portrayed on The Bachelor Pad (discussed on the Freakonomics Blog and four years ago on this site). This time, the conversation revolved around a British game show called Golden Balls that was very popular several years ago. I can only assume that you’ve already discounted Golden Balls’ educational value based on its name alone but bear with me . . .

The typical scenario plays out like this: two parties sitting across from one another with one crucial decision that decides how a lump sum of money will be divided. That decision revolves around the four golden balls that sit on the table. Each part can anonymously choose their split ball or their steal ball. If they both steal, they walk away with nothing. If they both split, they split the money. However, if one contestant chooses to split and the other chooses to steal, the thief will walk away with all of the money.

The typical situation ends something like this. But one contestant shows us a unique way to handle the prisoner’s dilemma in this video. Most importantly for class, some good commentary on the second situation can be found here. The class really enjoyed learning the real story behind the winning strategy.  Enjoy the show!

Negotiating the Recline Function on your Airline Seat

After yesterday’s diverted flight in which a United plane had to land over a dispute regarding someone’s right to recline their seat, I think I see a business opportunity for dispute resolution.  Josh Barro for The Uphot in the New York Times argues that if he is expected to give up his right to recline, he should be paid for it.  As he notes, no one has yet tried to negotiate with him over his recline so it must be that people are not willing to buy this right.  I think, instead, that no one really knows how to start the negotiation.  If we dispute resolution professionals just announced at the beginning of the plane ride that we were available to mediate any disputes (and take a percentage of the money changing hands), who knows how many more happy passengers there could be?  And, once we demonstrate how helpful mediation can be in this context, we will have convinced whole new audiences about the wisdom of using this process.  In the alternative, perhaps we could offer negotiation training to passengers who need help starting the negotiation.  After all, isn’t this a quintessential difficult conversation?  Clearly the conversation about reclining seats has touched all sorts of nerves about identity, ownership, rights and respect.  In the meantime, I’ll just pray for an upgrade to economy comfort! (Hat tip to Natalie Fleury)

The Latest Thinking on Mandatory Arbitration

As promised Wednesday, I wanted to post about the very interesting discussion panel on mandatory arbitration put together by Hiro Aragaki and Andrea Doneff at SEALS.The format, as I mentioned, was a roundtable in which each person presented their paper briefly and then we had plenty of time for comments, questions, suggestions, and even thinking about future panels together at SEALS or the ABA next spring.  Direct from each presenter, below are the list of titles of each presentation–feel free to be in touch with them directly with comments and questions.  For me, I really enjoyed this and appreciate the benefit of hearing from each of these scholars as to the problem they are tackling.

 Maureen Weston–The Clash: mandatory arbitration and administrative agency access–discussing the rights provided under each process.

Michael Green–Agency Access and Employment Arbitration–arguing that despite enforcement of FAA jurisprudence, arbitration  policies that discourage or eliminate access to labor and employment agencies should be limited consistent with EEOC v. Wafflehouse.

Stephen Ware–Arbitration and the Consumer Financial Protection Bureau: A Centrist Proposal–outlining that the CFPB should pay attention to both the “adhesion” and “contract” of arbitration agreements

Hiro Aragaki–Shifting conceptions of freedom in modern arbitration jurisprudence

Ann Lipton–Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws–noting the interesting problem of arbitration in shareholder context

Sarah Cole– Giving meaning to Exceeding the powers:  enforcing party limits on arbitrator remedial authority–examining what courts actually do when arbitrators exceed their powers

Andrea Doneff–her paper is exploring parallels between current arbitration jurisprudence and cases that followed Swift v. Tyson and preceded Erie R. Co. v. Thompkins to find lessons that can be applied to arbitration cases that today otherwise would be decided in favor of powerful corporations.

Jill Gross–Setting the Record Straight: The Supreme Court and 21st Arbitration–arguing that the Court’s uninformed and out-of-touch decisions have crafted a legal framework regulating an arbitration process that largely no longer exists

Richard Frankel–Concepcion and Mis-Concepcion: The Survival of Unconscionability after AT&T v. Concepcion

Nancy Welsh–A Judicial Invitation to Consumers to Influence the Use and Character of Mandatory Predispute Arbitration–Describes the series of meetings and communications of credit card issuers, in-house and outside counsel, and dispute resolution organizations that preceded widespread adoption of class action-barring arbitration clauses (as described in Ross et al. v. American Express et al.) and uses these events to examine ethical issues that may exist for lawyers and dispute resolution organizations as well as the emerging salience of class action-barring arbitration clauses for consumers

 Also here at SEALS was Cynthia Alkon, John Lande, Kelly Browe Olson (my guide in all things SEALS), and Rishi Batra so it was quite the showing!

Live Blog from SEALS

Sarah Cole can clean you off the tennis court–here’s talking to you Michael Moffitt…

Okay, now that I have your attention, let’s turn to how I know this. I am attending SEALS for the first time and I want to start by saying–wow–I should have been going to this all along! Great location, much fun, and…most importantly, a really relaxed environment for free flowing conversation. The “discussion” format spreads over 3 hours and allows a whole bunch of people to talk briefly. The rest of us sit around the table and listen and participate–it is much more interactive then the typical “present and discuss” format at other conferences. This fits well with the entire sense of the conference where–even as we change from our bathing suits to run into a session–the whole atmosphere is casual.

I’ll blog separately about the mandatory arbitration panel but let me note two key ADR people accomplishments–one, Michael Green from Texas A & M was just elected to the Board of Trustees of SEALS for a three-year term. And, in a nail-biter, Sarah Cole and Maureen Weston were the doubles champions at the tennis tournament this morning! Congrats to all!!!

Mediating International Investment Disputes

A quick note that Harvard Law Review just published a note this month entitled Mediation of Investor-State Conflicts (Harvard Law Review, June 2014).  It’s very exciting to see this concept hitting the mainstream and the timing is good.  As the current litigation between Argentina and its unhappy bond holders demonstrates, alternate processes between states and their investors might work better!  The International Bar Association approved rules of mediation for investor-state disputes at the end of 2012.  Even more recently, the US has made a proposal to UNCITRAL for a convention on the enforcement of mediated agreements (what they are calling conciliated settlement agreements.)  While this is not concerning investor-state disputes, it is another example of the current favorable climate toward international mediation.  For more discussion, you can see the article that Nancy Welsh and I published last year here.  Hat Tip to Susan Franck for passing this along!

Boskey Writing Competition

Dear all, as I just sent out to our listserve as well, it is time to remind you of the Boskey Competition for three reasons–(a) I need your students to submit essays;  (b) you might be right now in the midst of grading the next competition winner as we speak! and (c) we need judges of the competition–please email me if you are willing to judge.

This competition offers your students a chance to achieve both fame and fortune by writing a good essay pertaining to dispute resolution. Please encourage your students who have written good papers this year to submit them to the competition. The deadline for submission is June 13, 2014. Details of the competition can be found here.

Happy Grading (and Happy Summer!)–Andrea

Just what we’ve all been waiting for: A negotiation cookbook!

At a gathering of negotiation teachers held at Marquette late last year, we conducted an exercise which demonstrated wonderfully many different outlooks on negotiation, in a short time and a creative way. We asked all participants to write out their own definition of negotiation effectiveness – in the form of a recipe, relating to ingredients required, their amounts and the proper sequencing or other preparation instructions. This resulted in some very creative outcomes, a wonderful discussion, and a negotiation cookbook!  Since then, I’ve conducted this exercise with students in two negotiation courses I’ve taught, with great results. Check out the exercise, and the range of recipes it produced, here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2419712

ACR New Voices Competition

From Bryan Hanson at the Werner Institute, below is a very interesting opportunity for our students:

 

Calling all Conflict Specialists newly entering the field

 The Association for Conflict Resolutionis announcing the ACR “NEW VOICES- Emerging Professionals”

Juried selection for featured presentation at the 2014 ACR Annual Conference

Exciting New Feature of the Conference

The 2014 conference to be held in October in Cincinnati will feature seven “New Voices” to present in “prime time” on the conference schedule.  This year’s conference organizers are reaching out across the globe to hear from students and new practitioners & researchers in the field.

 What we want to feature: The jury panel is looking to showcase exciting practices or research that will enhance the knowledge and practice of our diverse membership.  The panel will select the 12 – 15 presenters (depending on the schedule slot) based on both substance and presentation. 

 Additional opportunity: The conference presentation will also be recorded and featured on the ACR website.  Additionally, a select number of submissions that were not selected for presentation at the conference will be invited to submit a 15 minute video for the website. 

 Who is eligible to apply: All current students in programs specializing in conflict resolution or interdisciplinary programs in which conflict studies are an integral part may apply.  Practitioners who may not have been students in certificate or degree programs but have done other forms of training and have entered the field in the last five years are also invited to apply.

 Contacts for each of the regions are as follows:

 Find out more about “New Voices”: For more information about the New Voices – Emerging Professionals juried selection go to  http://www.acrannual2014.com/newvoices.html.

 

Happy Belated St. Patricks Day!

I went to Northern Ireland over spring break to see more about the conflict that we all study (yes, a totally geeky professor thing to do) and it was fascinating.  This blog will mostly be pictures to give you a sense of the different neighborhoods around Belfast but let me start by saying that it is amazing.  The downtown quarter is lovely with Victorian architecture.  And there is a fabulous new museum on the Titantic (my favorite saying:  Irishmen Built It; Englishmen Sank It) which also gives you the tone for how many of the Irish view the English! 

The next day we (mom and sisters) took of tour of the Belfast neighborhoods where the population lives.  And the separation barriers (aka peace walls) make Jerusalem look like child’s play.  There are over 90 peace walls–yes, that is the phrase that they use–and over half of them were build after the Good Friday Accords.  The peace walls are concrete barriers topped by fencing (apparently the first round of concrete was not tall enough to prevent molotov cocktails from being lobbed over them).  Just mindblowing.

So here are a few pictures.  First, above is a typical mural on the Falls Road side (the Catholic neighborhood.)  This one commemorates the IRA hunger strikers that died. The picture below is another mural and then a plaque, also from Falls Road, over the Sinn Fein headquarters, and is a memorial to someone who was killed.  These plaques are quite typical and ubiquitous, unfortunately, thoughout the neighorhoods noting each location where someone was killed.

 

 

 

 

 

 

 

 

Next is a picture of the peace wall from the Protestant side with a good perspective of how high these are. And the picture next to it is a typical mural on the Protestant side on Shankill Road.  Note how the mural begins with World War 1 (the Ulster force is known as the first troops over the trenches in the Battle of the Somme) and, in the bottom right, how Eire (Ireland) is the path to war.

 

 

 

 

 

 

 

Completely amazing to see—the walls clearly work in terms of preventing violence.  On the other hand, the constant and visual reminders of the past no doubt make it very hard to move forward.  Really interesting!

ABA DR Section Survey on Gender Differences

Hi all–as many of you know, the ABA Section on Dispute Resolution conducted a survey last year of its lawyer members and the results are in!  The report by Gina Brown and myself can be found here.  Our abstract is below:

This report to the ABA Section on Dispute Resolution outlines the results of a survey to the membership concerning the use of neutrals in both mediation and arbitration on behalf of the Women in Dispute Resolution Committee (WIDR) of the Section of Dispute Resolution. The goals of the WIDR Committee was to change how neutral selection occurs in disputes, to increase the number of women who serve as neutrals, and to ensure that women and minorities were proportionally represented as neutrals. The first step, before suggesting changes, was to understand the current situation in the world of dispute resolution. In fall 2012, the Section of Dispute Resolution surveyed the lawyers belonging to the section to determine how mediators and arbitrators are selected in legal cases and the types of cases being resolved through the many available dispute resolution processes. Specifically, the survey was designed to examine who is being selected as a neutral, by whom, using what process, and for what types of cases. This report explains the methodology of the survey, the demographics of the respondents and neutrals involved in particular cases, and, most importantly, the information about neutral selection.

 

This survey provides clear data on women serving in neutral capacities and demonstrates several different potential avenues of change. Three preliminary conclusions drawn from this data are — first, the type and subject matter of the dispute clearly impacts neutral selection. As detailed in the paper, certain practice areas are far more male and certain others are quite female. Second, it appears to matter how the neutral is selected in mediation. Networking resulted in only 29% women while provider lists resulted in an increased percentage of 47%. Finally, arbitration and mediation are not the same for gender integration. Arbitration seems to hold steady at 20% regardless of selection process and even decreases further in panel arbitrations.

 

Our recommendations included that clients and lawyers could be encouraged to think more broadly about who they use as neutrals. Particularly in three arbitrator panels, when considering equally qualified candidates, there should be a presumption that a woman be selected as part of a panel. Furthermore, neutrals need to be aware that personal networks still appear to be the primary source of referrals and that these networks need to be strengthened and broadened to include women. Provider organizations should be commended for improved gender balance in mediation. Courts, provider organizations, agencies, and other organizations that administer and oversee ADR programs should be encouraged to use lists and the lists themselves should be broadened to include more women. In arbitration, provider organizations (a) should also adopt the assumption that multi-arbitrator panels should include one woman when they are appointing the panel and (b) should have a higher percentage of women on their list so that these lists can do more than reflect the current situation. Additional efforts in certain practice areas (commercial, construction, etc.) are likely warranted with a targeted program to identify and encourage women and minorities to serve as neutrals.

We look forward to hearing your comments and thinking about what we can do to continue to improve gender equity in the field.

Shestowsky on Litigation Preferences

I am delighted to share a new article from Donna Shestwosky and look forward to reading her findings!

NEW STUDY REVEALS HOW PEOPLE WANT THEIR LAWSUITS RESOLVED

As court systems throughout the country struggle to deliver civil justice in the face of budget cuts, a new study by a UC Davis law professor finds that people involved in civil lawsuits prefer mediation to nonbinding arbitration and like judge trials more than jury trials.  In her study, “The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante,” Donna Shestowsky, who teaches negotiation strategy, alternative dispute resolution and legal psychology, reveals the legal procedures preferred by people involved in civil lawsuits at the start of their cases. The findings could help court systems design future generations of court-connected alternative dispute resolution programs by providing guidance on which procedures litigants find more appealing.

“The clear overall preference that litigants expressed for mediation over nonbinding arbitration has important implications for courts that want to draw litigants into their voluntary ADR programs, especially if they offer only one ADR procedure,” she said. “This finding helps to resolve a long-standing debate over which of the two procedures litigants prefer.” Overall, litigants liked mediation, the judge trial, and negotiations that included the litigants along with their attorneys more than all other examined procedures. A judge trial is where a judge determines the verdict rather than a jury.  The study also found that compared to men, women were significantly less attracted to jury trials and binding arbitration.

Repeat players – those who had been either a defendant or plaintiff in a prior case – liked the idea of using binding arbitration for their case more than first-time litigants. “This finding resonates with the idea that repeat litigants are more likely than first-time litigants to appreciate the fact that trials are often associated with painful, protracted discovery and the threat of an appeal.”

The study also found that litigants preferred negotiations that included the parties along with their attorneys to negotiations that took place between the attorneys only. And the more litigants were confident of a trial win, the less they liked the option of the attorneys negotiating without the parties also being present.

Shestowsky’s project is the first multijurisdictional study that will explore how civil litigants assess procedures at various points during the same lawsuit. This is the first publication in a multipaper series, looking at litigants’ preferences at the beginning of a case. Subsequent papers will explore litigants’ views at the end of their lawsuit. This article appears in the latest edition of the Iowa Law Review, released Jan. 1.

The article is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2378622.

Shestowsky collected extensive data from more than 400 litigants, in 19 different states, whose cases were filed in court systems in California, Oregon and Utah.  Case types included contract, employment, civil rights, medical malpractice, personal injury, and property disputes. This project was funded by competitive grants from the National Science Foundation, the American Bar Association Section on Litigation and the University of California.

Plea Bargaining and the Trial Penalty

Today’s report from Human Rights Watch and the ensuing uproar over prosecutor behavior is just the latest attack on a negotiation system that is fundamentally flawed.  Human Rights Watch report here and New York Times coverage here 

When I studied how lawyers in general negotiate and then assessed the behavior in criminal cases (Cooperating or Caving In: Are Defense Attorneys Shrewd or Exploited in Plea Bargaining Negotiations?), it was remarkable to me that prosecutors and defense attorneys seemed to describe almost a fantasy system where more than 85% of negotiation interactions were described as problem-solving.  And, as I explained at the time, repeat play and large case loads do have a significant impact on the relationships between counsel.  But the threat of the trial penalty perhaps created a system in which defense attorneys have no choice but to “get along” with prosecutors and, given their power, prosecutors can choose to appear as problem-solving as they like.  It appears that in the last ten years, this situation has only become worse. 

The Human Rights Watch study shows both the harshness of the trial penalty and the capriciousness of its use by prosecutors.  If this is the shadow of the law in which defendents are bargaining, it is a very dark one indeed.

WIP Papers–Hunger Games

To follow up on an offer we made at the Works-in-Progress conference, particularly for new scholars, here is an introduction to Lauren Newell, a new professor at Ohio Northern University.  Her paper that she presented at the conference was terrific and I am very much looking forward to the research.  Here is how she describes it:

Hunger Games: The Impact of Food and Hunger on Negotiation 

The question of whether hunger is helpful in negotiations is one that has generated a multitude of opinions, but little empirical data.  Some people prefer to keep the parties well fed in the belief that this fosters optimism, energy, and creativity.  Others opt to delay meals as long as possible because they view hunger as a helpful motivator that encourages quicker compromises and promotes efficient settlements.  This paper will identify connections between the science of hunger and of self-control and the anecdotal experiences of those who believe food plays a positive role in negotiation.  It will then seek to demonstrate that negotiating while hungry is disadvantageous by adopting and testing the hypotheses that: (1) hungry negotiators will conduct shorter and more contentious negotiations than non-hungry negotiators; and (2) non-hungry negotiators will achieve more joint gains and will have greater short-term and long-term satisfaction with the outcomes of their negotiations than will hungry negotiators.  Finally, this paper will examine the ethical implications of providing or denying food in order to gain a negotiating advantage.

Her previous research focused on Disney and can be found here:

Happiness at the House of Mouse: How Disney Negotiates to Create the “Happiest Place on Earth”http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2109491 

Mickey Goes to France: A Case Study of the Euro Disneyland Negotiationshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2235699

 Happy to welcome Lauren to the community of ADR scholars and looking forward to her future contributions!

 

Speechless–and then a great speech

I have been reeling recently with the latest, almost comical, memo that was sent to female Clifford Chance associates at the end of last month entitled “Presentation Tips for Women.”  While some of the advice could be useful to all associates (rehearse, prep your opening, etc.), the majority of these tips are just offensive, particularly as the memo only went to women.  (don’t giggle, don’t show cleavage, don’t squirm, practice big words, and the list goes on.)  Above the Law rips the memo to shreds here, listing some of the most ridiculous tips along with their commentary: 

“Like” You’ve got to Lose “Um” and “Uh,” “You Know,” “OK,” and “Like.”
– Um, Clifford Chance, do you think that women associates are like, uh, valley girls?

Think Lauren Bacall, not Marilyn Monroe.
– Because the goal in Biglaw is to sound like an older woman dripping with sex, not a younger one.

Don’t giggle; Don’t squirm; Don’t tilt your head.
– Don’t act like a teenager. Don’t act like a four-year-old. Don’t act like a confused dog. Got it.

Practice hard words.
– Wrap your tiny female brains around this one (or consult with George W. Bush if you’re having difficulties).

Wear a suit, not your party outfit.
– In case you’ve forgotten, there’s no such thing as work/life balance. Their suits are their party outfits.

No one heard Hillary the day she showed cleavage.
– Similarly, no one heard Bill the day he waved his dick around.

We reached out to Clifford Chance for comment on this debacle, and received this statement from the firm:

     The original presentation and associated tips represented a personal perspective, shared with a group of colleagues, some just starting out in their careers. The more than 150 points are based on what this individual has found helpful as a public speaker in a broad range of business environments. While much of what is covered is common sense, we believe that it is important that women as well as men are given access to a range of different viewpoints and approaches; there is no Clifford Chance template on how people should present. The offense caused by a small percentage of the suggestions in the tip sheet was entirely unintentional.

 

We’re sure that the women attorneys at Clifford Chance feel much better now that they know the inadvertent sexism present in this memo wasn’t intentional.

More scatching criticism abounds from many others–see Huff Post, my colleague Lisa Mazzie, and pretty much any other blogger writing about it.

At the same time, TIme Magazine just featured an article called The Last Politicians about the women of the Senate.  Time categorized them as the “only adults left in Washington.”  Clearly positive and flattering, the article highlighted how women get things done, using so many of the dispute resolution techniques we would recognize.  Of course, the article notes that there is still a long way to go for equality.  For example, 25 states have yet to ever elect a woman as Senator.

The New York Times was on the same page last month as well, with a cover story in its Sunday business section on women and leadership, interviewing four women about how they manage the work/life balance and succeed.  As I have written before on politics, and on women lawyering, that balance between likeability and competence remains a difficult one to manage. 

But all is not lost.  At least Hollywood has moved forward even if other venues have not.  I was just sent a clip from the most recent episode of Scandal  (which I don’t watch but I think this clip has just persuaded me to do so!)  Lisa Kudrow takes on the media and her opponent in her run for the Presidency here.  Perhaps the partners at Clifford Chance could learn something about speaking and sexism by watching it!

Tan Pan Symposium

I just returned from a fabulous weekend in Hong Kong (and yes, I would suggest staying longer next time.)  Nadja Alexander, Jim Coben, and Chris Honeyman put together a really diverse and interesting group of people to discuss Modern Negotiation and Ancient Wisdom.  The articles coming out of the conference will form the next issue of Tan Pan–a journal on conflict resolution in both Chinese and English which is a joint project of the International Institute for Conflict Engagement and Resolution (IICER) at Hong Kong and the Dispute Resolution Institute at Hamline University Law School.  Highlights included Dining in the Dark (a dinner completely in pitch black), a great walking tour of older Hong Kong neighborhoods, and a conference run with a world cafe methodology that kept us moving and active throughout the day.  My contribution (or at least my commitment!) is to co-author an article with a colleague from Singapore tentatively titled “Gearing up for Battle: Ancient Warrior Wisdom for the Modern Negotiator.”  The article will look at Sun Tzu (I’ve been intrigued since Michael’s post), Gita (an ancient Hindu story), and the Torah.  Please let me know if you have any ideas!  And I know that Tan Pan would love your contribution as well.

Solutions Lawyering?

We had New York Times journalist Tina Rosenberg visit the law school this week in honor of the ABA’s Mediation Week and she was fascinating.  First, she is a recipient of the MacArthur “genius” grant which she used to travel to South America and lived there for several years.  Second, she won a Pulitzer Prize for her second book, written about the fall of communism.  And those were not even the reasons we invited her!  Her “Fixes” column in the Times focuses on “solutions journalism”–the idea that journalists can cover what works as well as what the problems are around the world.  In her talk to students, she discussed how solutions journalism is one response to the “argument culture” also shared by lawyers and we talked about how the ADR movement is similar in many ways–trying to create a shift in how lawyers think of themselves and their role.  Tina’s most recent book–Join the Club: How Peer Pressure Can Transform the World–focuses on another type of persuasion that relates to lawyering and mediating skills.  Really eye-opening in a variety of ways–and I am coining the phrase Solutions Lawyering right now.  I am also going to read Join the Club and think more carefully about how we teach ethics–Tina would argue that only pointing out the bad behavior might not be nearly as persuasive as celebrating, and making normal, the good behavior.  Hmmmm–much to contemplate.  Link here to a blog post about her visit with our own distinguished journalist in residence–Mike Gousha–and here is a link to the video of her visit with him.

Mediation Misbehavior Not Protected

From FOI Natalie Fleury, here’s a great case arguing for good behavior in mediation:

During a shuttle mediation addressing alleged sexual discrimination, the charging party (and at-the-time current A.B. Data employee), Michael Benes, broke into the room where his employer’s representatives were situated and stated “You can take your proposal and shove it ** **** *** and fire me and I’ll see you in court.”  He apparently felt the offer was too low.

Not surprisingly, he was fired.  Mr. Benes then filed suit under 42 U.S.C. §2000e-3(a), the anti-retaliation provision of Title VII of the Civil Rights Act of 1964.  The district court granted A.B. Data’s summary judgment motion, deciding that Benes had been fired for misconduct during mediation, not in retaliation for the discrimination charge.  Benes appealed to the 7th Circuit. 

The Seventh Circuit Court of Appeals affirmed the district court, stating in part: “It was Benes who sabotaged the mediation session by barging into the other side’s room. Put to one side what he said there. Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator. . . . Since §2000e–3(a) does not create a privilege to misbehave in court, it does not create a privilege  to misbehave in mediation.”

 You can access the full opinion here.  Hat Tip to Willamette’s RDDR Summer 2013 Issue 4.

What I Did on My Summer Vacation…

We hope that you are enjoying your last gasps of summer, kicking the kids out of the house and into school, and ready to teach/practice/work!  A few of us will be sharing a bit from our summer break including what we read, what we wrote, and what we are going to be adding to our teaching.  Other possibilities include favorite trips, negotiation stories, recipes, whatever….  Readers are invited to send along their summer vacation memories as well so feel free to comment or to send to one of us to post.

What I read:  Following on some great recommendations from the ABA panel last spring, I first read Brene Brown’s Daring Greatly on the importance of vulnerability.  The message of fail often in order to succeed well was a critical one in the book.  She also spends much time talking about empathy and where this comes from.  It was definitely an easy and enjoyable read.  I am now finishing up The Righteous Mind by Jonathan Haidt on why good people disagree over everything.  It is a fascinating look at intuition, morality,  and how our brains are formed to assumptions that then results in political differences.  Really helpful for me in understanding political differences, particularly in my state these days!

What I wrote:  This summer was the summer of second or third editions–edits to the new Mediation textbook (out in print now!), the new Negotiation textbook (coming soon), and the new Examples & Explanations also coming soon.  I also have been working on a more accessible book for science faculty on how to negotiate their careers (grants, research support, co-authorship, etc.) based on some of the training that I have been doing for medical faculty in the last five years.

What I am teaching:  For the second time, I am starting off my ethics class with the DONS exercise.  Before I poison the students with rules (Art’s study shows that over the course of law school, students get less ethical), I want them to get a sense of their ethical compass.  I am also, for the first time, going to have the “clients” do their own negotiation to see if there is any difference.  So I am curious….  As for ADR, I want to use clips from the television show Brain Games (that is what I watched this summer).  Each segment showed several different ways our brain takes shortcuts as we make decisions that can make us less effective (like their version of the invisible gorilla).  So I’ll keep everyone posted how that works.

And, for fun, what I ate:  Too much deli in New York, too much red wine in Pittsburgh, too much pasta in Italy–in short, it was a great summer.  Welcome back to all!

 

 

Job Posting–Northern Illinois Clinical Professor

Susan Yates of RSI and Professor Anita Maddali from Northern Illinois University have a three-year grant from the Illinois Attorney General’s Office o do foreclosure mediation work.  (Good work guys!) And, as part of the grant, NIU is looking to hire a visiting assistant clinical professor to start a foreclosure clinic at the law school.  Below is the official posting:

Visiting Assistant Clinical Professor

Northern Illinois University College of Law

 The Office of the Illinois Attorney General has awarded a joint three-year grant to Northern Illinois University College of Law (“NIU Law”) and Resolution Systems Institute (“RSI”) to assist homeowners harmed by fraudulent foreclosure and loan servicing practices.  As part of this grant, NIU anticipates hiring a Visiting Assistant Clinical Professor to establish an NIU COL foreclosure clinic.   The expected start date is August 1, 2013.

As the only public law school in Northern Illinois, NIU College of Law has been named a top law school nationally for diversity, value, and careers in public interest/government service. NIU Law provides unique opportunities for its students, beginning with  its highly accomplished faculty who are personally invested in the success of every student throughout their professional lives. Although many alumni serve as public interest attorneys, prosecutors, defenders, elected officials, and judges, they are equally prepared for careers as solo practitioners or lawyers in multinational firms.

The Visiting Assistant Clinical Professor will teach a foreclosure law clinical course during the fall, spring and summer semesters beginning in the fall of 2013, and will supervise approximately five to eight law students each semester.  Students
enrolled in this course will learn about foreclosure law, the foreclosure mediation process, and will develop a wide range of lawyering skills.  Under the supervision of the professor, students will screen and prepare foreclosure cases for ediation, and represent borrowers in mediation as needed.  Clinic students will work closely with Prairie State Legal Services, assisting them with their foreclosure intake line.

Principal duties will include the following:

Creating and teaching a foreclosure law clinical course

Supervising law students enrolled in the clinical course

Assisting with the Prairie State Intake Line

Preparing individual borrowers for successful mediation

Representing individual borrowers in mediation

Working closely with RSI to coordinate obligations and duties under the grant

Submitting required reports to the Illinois Attorney General

The salary is $60,000 annually, plus benefits.

Required: JD from an ABA-accredited law school; 2 years legal experience; and a current license to practice law.

The preferred applicant will have 2-5 years experience representing clients in foreclosure proceedings.  Teaching experience, particularly clinical teaching in a law school setting, is desired. The ideal applicant will have an interest not only in the foreclosure legal process, but also in teaching law students the necessary skills to effectively represent clients.

AA/EEO institution.  Preference will be given to applications received by July 8, 2013, although applications will be accepted until the position is filled.  In compliance with the Illinois Campus Security Act, before an offer of employment is made, the university will conduct a pre-employment background investigation, which includes a criminal background check.

In accordance with applicable statutes and regulations, NIU is an equal opportunity employer and does not discriminate on the basis of race, color, national origin, ancestry, sex, religion, age, physical and mental disability, marital status, veteran status, sexual orientation, gender identity, gender expression, political affiliation, or any other factor unrelated to professional qualifications, and will comply with all applicable federal and state statutes, regulations and orders pertaining to nondiscrimination, equal opportunity and affirmative action.

To apply, please send by July 8, 2013, a letter of application, resume, and list of names/addresses/email addresses/phone numbers of three current professional references to Dean Jennifer L. Rosato, Office of the Dean, Attention: Tita Kaus, Northern Illinois College of Law, Swen Parson Hall, Room 270, DeKalb, IL  60115-2890, or send materials electronically to tkaus@niu.edu

Boskey Competition Reminder–June 14th Deadline

Dear all, as I just sent out to our listserve as well, it is time to remind you of the Boskey Competition for two reasons–(a) I need your students to submit essays; and (b) you might be right now in the midst of grading the next competition winner as we speak.

This competition offers your students a chance to achieve both fame and fortune by writing a good essay pertaining to dispute resolution. Please encourage your students who have written good papers this year to submit them to the competition. The deadline for submission is June 14, 2013.   Details of the competition can be found here.

Happy Grading (and Happy Summer!)–Andrea