NEGOTIATION AND MEDIATION SEMINAR

Course Description

This course is designed to teach you the theory and practice of negotiation and mediation (as facilitated negotiation) by exposing you to both conceptual and behavioral forms of learning. Every lawyer negotiates, whether in dispute resolution (litigation) or transactional and planning contexts. Many do so without understanding why they do what they do or how they actually behave during a negotiation. In this course we hope to give you some theoretical models and frameworks to guide your conceptualization of the negotiation process in particular contexts, as well as to help you understand how your own behavior may or may not be congruent with the analytical choices you think you have made. Most importantly, we hope to teach you how to be aware of your own negotiation processes, both in terms of how you conceptualize a negotiation "problem" and how you behave when negotiating. In addition, we hope to help you see how lawyer-client interactions structure the negotiation choices you have. Our goals in this course include teaching you how to continue to evaluate your own negotiating work so that when you leave this course you will always be reflective and evaluative about what you are doing.

You will be required to read, write, discuss and perform. Unlike many law school courses, this one will require you to apply what you have read immediately, by asking you to think about and plan an approach to solving a negotiation problem and then to act on your plans. Because negotiation is an interactive process, you will frequently have to adjust your analysis and behavior, based on what other parties (and your own client) may do. Thus, this course will teach you to act, as well as, think like a lawyer. We will also teach you how to give feedback to each other and to yourself. Being criticized for one's behavior as well as for one's thinking is often quite threatening, but if done well, it is the best way to learn and this may be one of the last opportunities for you to get "free" feedback on how you are perceived by others. In short, whether or not you actually practice law, this course should help you live your life, no matter what you do.

Many people act from assumptions about what is at stake in a negotiation, what the other side wants or is like and what they think they can do to "win." We will learn to look at and question those assumptions. If this course is successful it will teach you to think about every negotiation as an opportunity to solve a problem that exists or create new value where there was none or try to make a bad situation a bit better (making lemonade out of lemons, as a wise person once said to me!). We hope to enhance your ability to think creatively and synthetically as well as analytically. You will also learn that planning is essential and can sometimes make up for your novice status as a new legal negotiator. And, you will learn that "people" skills may be just as important as technical skills. The skills you will learn include analysis, persuasion, creativity, listening, interviewing, counseling, question-framing, and the use of law and legal principle. We will also explore the moral and ethical issues implicated in negotiation--honesty, integrity, character, reputation and personal identity.

We will also try to introduce you to the many ways in which the basic processes of mediation and negotiation have been used to develop new forms of dispute resolution in both the public sector (in courts) and in the private sector (mini-trials, med-arb, structured dispute resolution systems) and we will try to explore some of the difficult policy issues that have emerged.

In short, we want you to develop the "micro" skills necessary to be effective negotiators at the same time that you develop a "macro" consciousness about the uses to which your skills will be put.

This is a lot to do in a relatively short time, so we require your commitment and welcome your comments, reactions and suggestions.

Course Requirements

1. Attendance

Because you will be playing roles as clients and lawyers and the learning of the whole class depends on it, attendance is mandatory for all sessions. Absence, for any reason, must be approved by the instructor.

2. Readings

The required course books are Fisher, Ury and Patton, Getting to Yes (2d ed. Penguin Press, 1991); Robert Mnookin, Scott Peppet and Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Harvard-Belknap Press, 2000); Howard Raiffa, The Art and Science of Negotiation (Harvard Univ. Press); and Kenneth Arrow, Robert Mnookin, Lee Ross, Amos Tversky and Robert Wilson, (eds), Barriers to Conflict Resolution (W.W. Norton, 1995), all available from the bookstore, and a book of readings, edited by me, Materials in Legal Negotiation and Mediation, available from the Distribution Center. I have also ordered at the bookstore several recommended books for those of you who are really interested in pursuing this subject. The recommended books are David Lax and James Sebenius, The Manager as Negotiator, Robert Axelrod, The Evolution of Cooperation, William Ury, Getting Past No. In addition, there will be several other useful books available on reserve in the library, including Gerald Williams, Legal Negotiation and Settlement, Rubin & Brown, The Social Psychology of Bargaining and others.

The literature on negotiation and mediation is now vast. I will be happy to make bibliographic suggestions as you request them, either during work on particular negotiation problems or as you complete your paper assignments. There are also several important journals you might want to become familiar with including Negotiation Journal, Mediation Quarterly, Ohio State J of Disp. Res., the Journal of Dispute Resolution (Missouri-Columbia), Alternatives to the High Cost of Litigation (CPR Institute for Dispute Resolution) and the new Harvard Negotiation Law Review. All of these should be available in the library.

3. Written Assignments

There will be short written assignments at least once a week, including guided reflections pieces, legal memos, negotiation plans, negotiation agreements, analyses and self-critiques of negotiation exercises, etc. All assignments are due on the date specified--no extensions will be permitted without instructor approval and you will be penalized for any late papers.

4. Video-taped Negotiations

At several points in the semester you will conduct negotiations that will be videotaped and critiqued by yourself, other students and the instructor. These will usually occur outside of class time and will consist of two hour sessions. You will be asked to submit schedules of out of class time availability for these sessions. You will be "representing" real clients, played by various people (other than yourselves). Your "clients" will have to agree to any settlement you work out and will provide some feedback on how they experienced you as their lawyer.

5. Final Paper

This course is approved for writing credit, based on both the many shorter weekly writing assignments and the final paper . You should submit a final paper (about 10-15 pages in length) that will be due at the end of the examination period. This paper can be on any topic of your choice and my approval. You may choose to analyze a negotiation, mediation or dispute resolution problem that you have participated in or observed, an international, domestic or legal problem that you would like to analyze from a dispute resolution perspective or you may write a critique of some existing literature or do a small research project in the area of dispute resolution, negotiation or mediation. You may also write a negotiation problem, which includes writing facts, instructions for all parties, a legal memo discussing the applicable law and a teacher's guide, discussing the goals and purposes of the negotiation exercise. You should discuss all writing projects with me. There is no final examination in this course.

6. Grading

The grade for this course will be based on the quality of your written work and your participation in the negotiation exercises. Grades will not be based on competitive grounds of the "results" of outcomes of your negotiations. Your grade will be based on your ability to think creatively and to come up with good and wise solutions to the legal and other problems you are being asked to solve. We want to encourage you to take risks and experiment with your own thinking and behavior and we don't want grading to inhibit that activity. Your preparation, commitment, insight and improvement during the duration of the course will count in your final grade. You will receive comments and some indication of progress on your assignments. Note that you will have many interim "grades" on the multiple assignments in this course.

7. Confidentiality

Many of the problems depend on confidential instructions. Much of the time you will work with a partner and often you will work in larger groups working on the same side of a case or transaction. It is important that you not share instructions about a problem until you are told you can do so by the instructor (following the de-briefing of an exercise). Your honesty, integrity and ethical conduct here will not only count in your grade but in how you are seen by your peers, as well as by your instructor. If you have any questions about the confidentiality of any facts, ask me.

Course Schedule

Please note that this schedule is subject to change, given our pace, snow and other conditions beyond our control. You must come to class to learn about the assignment for each class.

Final Papers are due on the last day of exams but the earlier they are turned in, the more feedback you will get.