Instructions for Writing Simulations

You may write a simulation about any kind of dispute where mediation is used. I encourage you to write about cases that are typically in litigation such as contract, tort, and family law cases, but you may write about other applications, such as victim-offender, internal workplace, health care, education, community, or international disputes. The facts should be plausible to make the simulation most useful. Sometimes it is interesting to use a common fact pattern to explore nuances in a case. Other times it is interesting to take a somewhat unusual (but plausible) case to illustrate special dynamics that might arise.

For this assignment, a simulation must include (and in the following order): (1) teaching notes, (2) general information available to all participants (possibly excluding the mediator), and (3) private information for each participant. To provide some general guidance, these instructions indicate an approximate number of double-spaced pages for various parts of the assignment.

The teaching notes are the most important part of this assignment, so spend most time on them. The teaching notes must include a brief summary of the facts of the case, usually at the beginning. This should be no more than about 2 pages. The teaching notes should primarily focus on one or two interesting issues raised by the case. An issue is interesting if there is not an easy solution. These must be mediation issues (e.g., dealing with impartiality, cultural differences, gender, parties’ disrespecting each other, inaccurate assumptions or attributions of the others’ motives) rather than legal issues (e.g., what the likely court outcome would be). The discussion must describe suggested strategies for analyzing or handling the issue, and, if appropriate, advantages and disadvantages of those strategies. Although this is not primarily a research paper, your analysis of the issues in the teaching notes must relate (and include some references) to relevant discussions in the literature if possible. Discussion of and references to the literature should be integrated into your discussion and not merely “tacked on.” Having said that, remember that the main focus is your analysis rather than primarily summarizing analysis in the literature. The teaching notes should be about 12-15 double-spaced pages and must include at least 10 pages of analysis.

Note that the simulations that I distribute in this course DO NOT satisfy all the requirements for this paper. In general, the teaching notes in my simulations identify issues but do not provide much analysis of those issues or recommendations for handling these issues. As these components are the most important parts of the paper, if you submit a similar paper (i.e., without the analysis and recommendations), you will not receive the best possible grade. Moreover, my teaching notes often identify more issues than you should address in your papers.

In most disputes there is some common knowledge between the disputants and it is important to convey to the role-players what the “other side” knows. The amount of information that mediators have about the case before the mediation varies greatly. Thus the information provided to the mediator may be brief or extensive depending on the situation. Mediators often discuss the case with attorneys before mediation and you may wish to include information about those conversations, such as what the attorneys said they want from the mediation.

The private information for each participant must include: (1) the person’s “story” about what happened in the underlying dispute, (2) the person’s story about the process of trying to resolve the dispute, including whether a lawsuit has been filed, the status of the litigation, any offers and counter-offers that have been made before the mediation, and how the case came to mediation (e.g., whether the court ordered it or one side suggested it), (3) a brief description of the tenor of the relationship between key participants, (4) facts relevant to the issues being highlighted in the simulation, (5) a summary of the person’s interests (this is essential to include), (6) the person’s assessment of the merits of key issues and expectations about would happen if they do not reach agreement, (7) a tentative strategy going into the mediation including at least a planned opening offer, and (8) a tentative “bottom line” below (or above) which the person would not accept an offer. The instructions for each participant should be about 2-4 pages.

For the purpose of this assignment, the parties must be represented by counsel unless that would be unrealistic for the type of case involved. The private information for an attorney and client will overlap but there are always some differences and these differences should be reflected in separate instructions for attorneys and their clients. Some common differences between lawyers and clients involve the state of the relationships (e.g., the attorneys get along pretty well but the parties are very angry), interests, expectations about likely results, bottom lines, etc.

To make the simulation work well it helps if the merits of the dispute are roughly evenly balanced and the likely court outcome is uncertain. Part of the trick in writing good simulations is capturing the uncertainty of the participants about what might happen and what they might do. For example, many cases settle in mediation because discussion causes people to reassess the case and change their bottom lines. There are sometimes problems in simulations where the instructions are too rigid and do not leave the role-players room to make the adjustments that often occur in real life.

Avoid using names that are too cute. This can get in the way of role-players (and simulation writers) being serious and getting the roles right.

It is hard to provide just the right amount of information for role-players in a simulation. If they do not get enough information, they may not really get into role and may flounder as a result. With too much information, role-players are overwhelmed and can't use it all. Do the best you can to find a good balance. Because it is impossible to convey all the information that each participant would bring to a mediation, it is especially important to provide a good description of each participant’s interests.

Copyright 2004 John Lande. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.