MEDIATION

Professor Folberg - Spring Semester, 2003
(Thursdays 10:00 AM-12:50 PM; Zief 10)

Required Text:

Resolving Disputes [Negotiation Intro and Mediation Section]
Folberg, Golann, et.al; Aspen Publishers (Anticipated 2004)

The assigned text is a draft of sections of a book that I am preparing with other authors under contract with Aspen Publishers. Your critique of the text will be helpful as we prepare the final manuscript. (See the journal requirement below.) Class discussion and simulations will benefit from your reading the assigned pages and questions even though we will not necessarily discuss each question.

Syllabus:

A class by class syllabus is attached. Because the text is still a work in progress and the course is interactive, we may alter the coverage to reflect class interests, student presentations and learning opportunities.

Class Exercises and Role Plays:

This course combines theory, law and skills. Students consistently evaluate favorably participation in class exercises and role plays. You will have the opportunity to mediate, represent clients, be clients and observe role plays. Please let yourself get into the roles, prepare where appropriate and take them seriously. Role plays provide an opportunity to experience the process, experiment and receive feedback.

Class Journal:

You are required to keep a class journal. Please make an entry in your journal for each class summarizing the assigned readings and class discussion, or state what you learned. For all exercises, role plays and simulations indicate your role, the outcome and what you learned or what you understood to be the point. Please evaluate in your journal each reading assignment, class and activity. Let me know if it was helpful, whether the activity is a keeper or could the class time be used more productively? Please suggest improvements. Was the reading assignment worthwhile; should it be deleted from the book or supplemented? The journal entries should be concise and thoughtful rather than rambling. No more than a page or two per class is preferable. Please make journal entries regularly after you read the assignment and after every class. Stale entries are less helpful for you and for me. I may randomly ask you to hand in your journal, so please bring it to each class. For your final journal entry before the last class, please evaluate the entire course. What did you learn from this course? What do you suggest be done differently next year? If you prepare your journal entries by computer, print a hard copy each week and bring the accumulated entries to class. Lost or erased computer entries will not be an acceptable excuse. All journals must be handed in at our last class on April 24th.

Student Presentations, Projects and Papers:

You are expected to complete a mediation related presentation, project or paper. I will outline below some of the options but invite you to exercise creativity in this requirement in a way that is of interest to you while demonstrating to me your understanding of mediation. You are expected to confer with me in person or by telephone within the first four weeks of the semester (by January 31) and to commit in writing to a specific presentation, project or paper.

A). Class Presentation:

Presentations may be 15-30 minutes on a topic related to mediation. A 1 to 5 page handout should accompany the presentation. Past presentations have included the use of mediation on line in resolving e-commerce disputes, the application of transformative mediation in resolving post office conflicts, an analysis and discussion of mediation efforts in a current high profile case, or a proposal for the use of mediation in a major international conflict. Foreign LL.M. students and other students with significant experience living in another country have presented on how people deal with conflict and resolve disputes in other countries, including current developments in mediation like procedures in those countries. Students who have observed actual mediations (see below for arrangements to observe mediations) have coordinated presentations by the lawyers representing clients in the mediation on how to best prepare and represent clients in cases to be mediated. Others have made presentations on their observations and analysis of mediations, provided confidentiality is preserved. Still others have brought together a panel of mediators to discuss how to best use a mediator to settle a case and what a new lawyer should expect in the process.

Presentations need not be traditional. Class presentations can also include video productions of simulated mediations, skits about what not to do in mediation, songs substituting mediation lyrics to current or classic tunes, short plays with a mediation theme, or any other creative presentation that is instructive or demonstrates knowledge of mediation. You may team-up to prepare a presentation with others, provided the combined effort is proportionate to the number of people. No one said this can't be fun.

B). Project:

Projects may include preparing mediation role plays for class use, selecting and showing movie video clips that illustrate negotiation techniques or situations ripe for mediation, doing research to assist a Bar committee or commission, or volunteering to work at a mediation conference. Other projects might include arranging mediation of a dispute within the community or preparing a mediation scenario based on a current dispute. Again, creativity in designing mediation related project is welcome and you can join forces to complete a project.

C). Paper:

You may write a paper of from 10 to 25 pages. Paper topics may be on any subject relating to mediation and preapproved by be instructor. You may write a critique and analysis of a mediation you observed or a comparison of mediator styles if you observe more than one mediator, (again preserving confidential information). An analysis of a recent or current conflict and how it might be resolved in mediation (like the dispute over the Barry Bond’s 73rd home run ball), or how mediation was utilized to settle a recent dispute (for example the Microsoft antitrust case) would be interesting papers. You may write a legal analysis of a mediation issue, for example some aspect of confidentiality, enforcement of mediated agreements or ethical dilemmas in a specific mediation situation or case. A comment about a pending or recent appellate case affecting mediation would be a good paper. You may analyze proposed or recently enacted legislation related to mediation or may assess news reports of a mediation, perhaps supplemented by interviews. Other paper possibilities include a review of a mediation related book, how a movie reveals insights on mediation techniques, or the connection between a film like “A Brilliant Mind” (game theory) and mediation -- or negotiation theory. A paper on “peer mediation” in schools and how it works may also be interesting. If you choose to satisfy the graduation writing requirement with your class paper, you must make the necessary arrangements through the Registrar's office and more may be required regarding the paper than if it is written for the class alone. All papers are due no later than May 21.

Observing a Mediation

If you would like to observe a mediation there are opportunities to do so. You may choose to use your mediation observation as the basis of a project or paper, but need not. The instructor will provide contact information for you to observe a commercial mediation at JAMS, in San Francisco's Embarcadero district, or, on occasion, with me at the law school. You must be prepared to spend the entire day in the mediation in order to see it from start to finish. You will be expected to maintain party and case confidences of observed mediations and to provide the instructor with a brief report of your observations. The out of pocket expenses and arrangements for the mediation observation will be the responsibility of the student. There may also be an opportunity to observe a Community Boards mediation.

Credit or No Credit

This is a non-graded course, however there are explicit requirements to receive credit. The following must be satisfied without exception:

A). Attendance. Because this is a participatory class with assigned role plays in class and no final exam, credit will not be given without regular and timely attendance. Your classmates and I must depend on your attendance each class. If a class is missed without a verified emergency or illness, course credit will not be issued. If you are ill or have an emergency, please communicate to me your likely absence or tardiness before class and let me know the reason. (Pleasure travel, anniversaries, birthdays, visiting relatives, and other assignments are not emergencies.)

B). Preparation and participation. You will be expected to read the assigned material before class, participate in discussion and make a good faith effort in class exercises and role plays.

C). Journals. The journal requirements, noted above, including bringing your journal to class and submitting it on time must be complied with in order to receive credit.

D). Presentation, Project or Paper. A presentation, project or paper, as explained above, is the final requirement for course credit.

Office Hours and Contact Information

My office hours in room 302 are: Monday 5-6:00 PM; Thursday 4:00-6:00 PM & By Appointment
(I am usually in my office and you are welcome to stop by anytime.)

Contact Information: Office Tel. 422-6279
Home Tel. 752-0207
Fax: 422-6433
Email: folbergj@usfca.edu


MEDIATION

Professor Folberg - Spring Semester, 2003
(Thursdays 10AM B 12:50 PM; Zief 10)

SYLLABUS
(Tentative, Subject to Revision)

Required Text: Resolving Disputes, (Aspen Publishers -- Anticipated 2004)
Folberg, Golann, et al

Date

Topic

Class Activity

Assigned to Read
Prior to Class

Jan. 9

Historical Context of Mediation and Conceptual Framework

Introductions; mini, arbitration, mediation exercise (Al & Sandy split)

Text: B1-13

Jan. 16

Negotiation Basics

Negotiation roleplay and discussion
(“Batmobile”)

Text: A1-22

Jan. 23

Negotiation Psychology and Barriers to Settlement

Ugli orange roleplay; pizza party trades;
and settlement barriers

Text: A22-35 and handout

Jan. 30

Mediation Process

Mediation roleplay; Landlord v. Tenant case
(Red Devil Dog lease role play)

Text: B13-39 and handout

Feb. 6

Mediation Roles

Mediation roleplay - Business contracts
(Prosandro high tech contract)

Text: B40-55 and handout

Feb. 13

Mediation Styles

Mediation roleplay - Exec. employment dispute
(“Save the Last Dance”)

Text: B77-81 and handout

Feb. 20

Confidentiality and Ethics

Mediation hypotheticals and small group discussions

Tex: B92-114; 130-149 and handout
Feb. 27

Mediation Applications

Mediation roleplay-Family and divorce
(Lynn & Mike divorce)

Text: B77 and handout

Mar. 6

NO CLASS -- Spring Break

 

Mar. 13

Mediation and Lawyers

Mediation roleplay -- Commercial case
(Waltham Const. vs. Foster Fuels)

Handout

Mar. 20

Student Projects and Paper

Planning and meetings

Mar. 27

Mediating Difficult Situations

Mediation roleplay - Sexual harassment claim
(Claudia Vs. PMG)

Handout

Apr. 3

Mediation Variations and
Hybrid Procedures

Mediation roleplay -- Process design
(Erin Brockovich)

Handout

Apr. 10

Institutionalization of Mediation

Lecture and small group discussion

Handout

Apr. 17

Mediation in Other Societies

Student presentations

Student prepared materials

Apr. 24

Mediation in Many Contexts

Student presentations

Student prepared materials


Copyright 2003 Jay Folberg. 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.