Cash Prize for Law and Grad Students Writing on Negotiation

The University of Missouri’s Center for the Study of Dispute Resolution and Marquette University’s Dispute Resolution Program are conducting a student writing competition on negotiation.

Ethics of Mediators Appointed by Courts and Bankruptcy Trustees

Saint John's University law professor Elayne Greenberg writes "we have all wondered at times why certain mediators seem to be favored over others and to what degree 'cronyism' and 'patronage' influence mediator selection." This is part of her Ethical Compass article, The Smith Case: Is the Glass Half Full? 

Ohio State Law's ADR Program's "Divided Community" Project

Today, the Ohio State University Moritz College of Law formally announces the Divided Community Project. The Project aims to strengthen community efforts to transform division into action and focuses on how communities can respond constructively to civil unrest as well as on how they can identify and meaningfully address the reasons underlying community division.  Earlier this year the Project published its first publications:

·         Key Considerations for Community Leaders Facing Civil Unrest: Effective Problem-Solving Strategies That Have Been Used in Other Communities, provides background information and expertise for local community leaders to assist and strengthen their effectiveness in responding through collaborative approaches to civil unrest. Key Considerations proposes six suggestions for dealing with the immediate aftermath of a divisive incident and makes two suggestions for longer-term strategies for addressing the causes of conflict.

·         Planning in Advance of Civil Unrest, offers leaders a stepped process to plan in ways that will avert or deal constructively with these divisive community events. Such a plan can help a community deal effectively with community division. Planning in Advance suggests eight strategies whereby communities can tackle division.

Both documents are licensed using the Creative Commons so that (with attribution) they may be copied, shared, adapted and tailored to fit the needs of a community or interest group. 

The Project is pleased to announce that Grande Lum, Gould Research Fellow and Lecturer at Stanford Law and former Director of the Justice Department’s Community Relations Service, has joined Ohio State’s Divided Community Project as the Director. 

ADR Ethics

USC Gould School of Law is hosting its First Annual ADR Symposium on April 15, 2016. The topic is "ADR Ethics"

Private Caucuses with Mediators

What happens in a mediation caucus? Answers from one mediator's caucuses in a study by Daniel Klerman and Lisa Klerman.

One paragraph from Inside the Caucus: An Empirical Analysis of Mediation from Within:

Parties in Lisa Klerman's mediations were always represented by lawyers. At least a day before the mediation, the lawyers ordinarily gave Ms Klerman “mediation briefs” summarizing the facts and legal issues. Lisa Klerman would typically begin the mediation by discussing the facts and underlying legal issues of the asserted claims in separate private caucuses (meetings) with each side. These communications were confidential in order to encourage the parties to be candid with the mediator. Ms Klerman would explore the strengths and weaknesses of the case with each side in order to set the stage for the parties to adjust their settlement expectations. In some cases, Ms Klerman would recommend an attorney caucus (a meeting between the mediator and the attorneys representing both sides, without their clients) to discuss disputed facts or novel legal arguments. It might be several hours before settlement numbers were discussed. Toward the end of the day, the parties may have stalled in their negotiations. If so, Ms Klerman would frequently make a “mediator's proposal” to settle the case. A mediator's proposal is a settlement proposal that comes from the mediator—not from either side—and is the number that the mediator believes both sides are most likely to accept. Although mediations are sometimes classified as facilitative or evaluative, Ms Klerman uses both approaches, as she thinks is most appropriate for each dispute. Because of her experience as an employment litigator, her evaluation of a case had substantial credibility with lawyers and their clients.

Resources for Teaching Negotiation and Mediation

Videos and roleplays from the American Bar Association and Suffolk University

Family Dispute Resolution

Innovations in Family Dispute Resolution conference at the University of Maryland School of Law November 13, 2015

Negotiating with the Dangerous (Terrorists, etc.)

Andrea Schneider (Marquette University Professor of Law) is the keynote speaker of this Negotiating with the Dangerous symposium at Fordham Law School.

Physiological Bases of Willpower as Important Explanations for Common Mediation Behavior

The Glucose Model of Mediation: Physiological Bases of Willpower as Important Explanations for Common Mediation Behavior is a new article I co-authored with psychology professor Roy Baumeister of Florida State University and two excellent practicing lawyers, Scott Simpson and Daniel Weber of Simpson, McMahan, Glick & Burford

The abstract:

Success in life requires the ability to resist urges and control behavior. This ability is commonly called “willpower,” the capacity to overcome impulses and engage in conscious acts of self-control. Social psychologists believe willpower is a finite resource dependent on physiological bases including glucose (from food and drink), sleep and other forms of rest, and the absence of stress. In short, people who are hungry, exhausted, or highly stressed tend to have less willpower than those who are well-fed, well-rested, and relatively stress-free. In addition, a person who exerts self-control (uses willpower) tends to reduce temporarily the amount of willpower remaining, so decision-making and other aspects of self-control are weakened during this depleted state. Restoring willpower (and thus restoring decision-making abilities) can often be achieved by physiological replenishment, such as: ingesting glucose, sleep (and other forms of rest) and breaks from stress.

The physiological bases of willpower combine with the importance of deadlines to offer a compelling explanation for why so many mediations follow a predictable pattern. Most significantly, the physiological bases of willpower go a long way to explaining why many mediations scheduled for a single day begin with stalwart opening positions and end with a signed settlement agreement late in the day. This Article provides a physiological explanation of typical mediation behavior and shows that an awareness of physiology reveals ethical issues with current mediation practice. Part I of this Article discusses the science, specifically the Strength and Glucose Models of Self-Control and their applications across studies of medicine, morality and negotiation. Part II outlines the course of a typical daylong mediation and shows the extent to which common mediation behavior is well-explained by the physiology of willpower when people are operating under deadlines. Part III examines the significance of the Glucose Model of Mediation by identifying ethical issues relating to willpower depletion in mediation.

Sept. 2016: Recent scholarship questions the willpower depletion (ego depletion) theory. Hat Tip to University of Tennessee Law Professor Becky Jacobs for pointing this out.

Collection of Alternative Dispute Resolution Course Syllabi Linked

University of Missouri Law Professor John Lande updated this excellent collection of syllabi for courses including Alternative Dispute Resolution, Arbitration, Comparative and International Dispute Resolution, Mediation and Negotiation.

Thanks also to John for his pleasant and insightful dinner conversation a few days ago. ;-)

Courts' Pressure to Mediate in England Similar to in the US?

An article in an Asian journal about mediation in England suggests issues familiar here in the United States. The abstract of Carrot and Stick Approach in English Mediation – There Must Be Another Way  by Hong-LinYu of the University of Stirling says under English law "Disputants are actively encouraged to take up mediation. Failing to do so, costs sanctions will be used as a 'stick' to penalize for having unreasonably refused to mediate in the eyes of the courts. This development has seen the voluntary nature of mediation, the need to educate the parties and the need for a legislative framework being sidelined."

Online Dispute Resolution

Online Dispute Resolution is the topic of a conference at JAMS New York City office, June 3-5, 2015, hosted by Pace University School of Law.

Good Negotiation Techniques from William Ury

Good Negotiation Techniques from William Ury

Videos for Learning Negotiation and Mediation

A nice collection of videos for learning negotiation and mediation is adrvideo.org

Securities Arbitration, Mediation and Negotiation

St. John’s School of Law and the Financial Industry Regulatory Authority (FINRA) host an annual "Securities Dispute Resolution Triathlon," a competition for law students. "The triathlon is the first and only competition to include negotiation, mediation, advocacy, and arbitration in a single event... Experienced neutrals from FINRA's mediator and arbitrator roster will evaluate and critique the student teams’ advocacy skills as they compete against other law school teams to demonstrate their proficiency in negotiation, mediation, and arbitration."