Non-Binding Methods of Dispute Resolution
University of Missouri-Columbia
School of Law
Fall 2004

Instructor: John Lande
Office: 206
Phone: 882-3914
Email: landej@missouri.edu

Course Goals and Objectives

This course focuses on the process in which professionals help people resolve problems through discussion and agreement. This includes (1) advocates advising and negotiating with and on behalf on principals, (2) mediators helping disputing parties negotiate, and (3) facilitators helping groups discuss and resolve problems. Students analyze the same issues from the perspectives of advocate and third-party. This course addresses theory, strategy, and skills, and public policy issues involved in these methods of dispute resolution that can be applied in any kind of legal matter. Students develop skills through readings, demonstrations, and experiential exercises.

The objectives of the course are to: (1) improve skills in listening, questioning, problem-solving, persuasion, negotiation, and professional judgment that are important for both mediation and legal representation, (2) increase understanding of dispute resolution theory and practice including ethical issues, (3) increase appreciation of advantages and disadvantages of negotiation, mediation, and litigation, and (4) encourage students to become more deliberate about their professional work and their own approaches to dispute resolution, both as advocates and mediators.

In addition, this course is intended to enhance students’ analytical skills. Good analysis involves identifying problematic issues and different perspectives about the issues. It also involves making sound generalizations based on experience and using relevant theories to develop appropriate strategies.

Course Requirements

1. Timely completion of required readings

2. Regular attendance and constructive participation in class discussion. Comments may be about issues in the readings, class discussion, case simulations, or other relevant matters. Asking questions can be a very good form of participation.

3. Timely submission of paper. The final paper may be: (1) a case simulation, or (2) a paper on a topic of the student’s choice. Detailed instructions will be distributed separately.

An outline is due by September 22.
A first draft is due by Monday, November 8.
The final draft is due by December 8.

Regularly back up computer files (e.g., every 10 minutes) and keep an extra disk copy to avoid losing hours of work in case of a computer crash.

Grading

Students will be graded on a letter-grade basis. Grades will be based on:

Class participation

30%

Final paper

70%

Papers will be graded based on quality of analysis as reflected in the insights, persuasiveness, organization, clarity, and thoroughness. Be sure to edit and proofread your papers. Editing is often improved if there is a break of at least a day between finishing a draft and editing it. Since it is usually very hard to edit one’s own writing, it can be very helpful to get someone else to read it carefully before you submit it. Soliciting or giving editing advice is permitted in this course as long as the vast majority of the work is done by the student submitting the paper.

If a student has three or more unexcused absences, the grade may be reduced and, in some cases, the student may fail the course.

Students are cautioned to avoid plagiarism and comply with the requirements of the Honor Code as provided in the student handbook. When in doubt (e.g., about plagiarism, paraphrasing, quoting, or collaboration), consult the instructor.

Dealing with Disabilities

If you need accommodations because of a disability, if you have emergency medical information to share with me, or if you need special arrangements in case the building must be evacuated, please inform me immediately. Please see me privately after class, or at my office. To request academic accommodations (for example, a notetaker), students must also register with Disability Services, AO38 Brady Commons, 882-4696. It is the campus office responsible for reviewing documentation provided by students requesting academic accommodations, and for accommodations planning in cooperation with students and instructors, as needed and consistent with course requirements. For other MU resources for students with disabilities, see http://www.missouri.edu/services.htm#disability.

Readings

Required Readings

Mark D. Bennett & Michele S.G. Hermann, The Art of Mediation (1996).

Sam Kaner, Facilitator's Guide to Participatory Decision-Making (1996).

Robert H. Mnookin et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes (2000).

Photocopy packet on sale in the Bookstore (not the copy center).

Recommended Readings

Roger Fisher et al., Getting to Yes: Negotiating Agreement Without Giving In (2d. ed. 1991).

Harold I. Abramson, Mediation Representation: Advocating in a Problem-Solving Process (2004).

Note that some readings below are indicated as recommended or to be skimmed. Also, the readings are concentrated in the beginning of the semester and the amount of reading varies from week to week. Class discussion will inevitably cover some but not all of the material in the readings. If you have questions about the readings, feel free to raise those questions, preferably in class, or with me privately.

Class Schedule and Assignments

8/25 Conflicting Interests, Communication, Negotiation
  Beyond Winning: pp. 9-10, chs. 1, 2, 6

Art of Mediation: 73-93
 
9/1 Role of Lawyers in Disputes
  Beyond Winning: chs. 3, 4

Lynn Mather et al., Divorce Lawyers at Work 110-32 (2001).

Skim: American Bar Association Section of Litigation, Ethical Guidelines for Settlement Negotiations, at http://www.abanet.org/litigation/ethics/settlement.html

Skim: American Academy of Matrimonial Lawyers, Bounds of Advocacy: Goals for Family Lawyers, at http://www.aaml.org/Bounds%20of%20Advocacy/Bounds%20of%20Advocacy.htm
 
9/8 Problem-Solving
  Beyond Winning: pp. 173-77, chs. 7-9
 
9/15 Starting a Mediation, Agenda Setting
  Art of Mediation: 17-29, 35-53, 100-107, 179-85

The following are examples of ADR rules. Skim some of them to get a sense of how they are structured, what they cover, and typical provisions.

Missouri Supreme Court, Rule 17, Alternative Dispute Resolution

Missouri Rule Civil Procedure, Rule 88, Re Child Custody and Visitation Mediation

U.S. District Court, E.D. Mo., Alternative Dispute Resolution Local Court Rules

U.S. District Court, W.D. Mo., Early Assessment Program Rules
 
9/22 Emotions, Confidentiality, Dirty Tricks, Co-Mediation, Impartiality, Power, Fairness, Mediation Persuasion Techniques *** Outline of Paper Due
  Art of Mediation: 94-99, 118-26, 137-38

Susanne Terry, Conciliation: Responses to Emotional Content of Disputes, Mediation Q., Summer 1987 at 45.

Louise Smart, Mediator Strategies for Dealing with Dirty Tricks, Mediation Q., Summer 1987 at 53.

Knoxville Bar Association Mediation Service Training Materials, Co-Mediation

Uniform Mediation Act - http://www.law.upenn.edu/bll/ulc/ulc_frame.htm - read the October, 2001 Final Styled Draft (which is unannotated). For the annotated version, see the Final Act 2001.

Missouri Supreme Court Rule 17.06

Recommended: David Greatbatch & Robert Dingwall, Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators, 23 Law & Society Rev. 613 (1989).
 
9/29 Goals and Styles of Mediation, Reaching Agreement, Role of Law and Lawyers in Mediation
  Art of Mediation: 15-16, 54-70, 108-14, 249-50

John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 Fla. St. Univ. L.Rev. 839 (1997).

Leonard L. Riskin, Mediator Orientations, Strategies and Techniques, 12 Alternatives to High Cost of Litig. 111 (1994).

Leonard L. Riskin, Replacing and Retiring the Grid of Mediator Orientations, 21 Alternatives to High Cost of Litig. 69 (2003).

Skim: Eric Galton, Representing Clients in Mediation 69-72, 75-83 (1994).
 
10/6 Mediation Intake, Dealing with Violence
  Art of Mediation: 30-34

Linda K. Girdner, Mediation Triage: Screening for Spouse Abuse in Divorce Mediation, 7 Mediation Q. 365 (1990.

Recommended: Nancy Ver Steegh, Yes, No, and Maybe: Informed Decision Making about Divorce Mediation in the Presence of Domestic Violence, 9 Wm. & Mary J. Women & L. 145 (2003), especially Parts VI-VIII.
 
10/13 Simulation
10/20 Dealing with Cultural Differences, Neutrality and Justice
Theatre of the Oppressed Demonstration with Prof. Suzanne Burgoyne
  Art of Mediation: 115-17

Grillo and Rosenberg “debate” and Delgado et al. and Hermann et al. pieces as excerpted in Riskin & Westbrook, 458-81.

Roger Fisher et al., Getting to Yes: Negotiating Agreement Without Giving In 166-68 (2d ed. 1991).
 
10/27 Empowerment, Recognition, and Evaluation
  Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (1994). Read pp.15-32. Skim pp. 139-88.

Marjorie Corman Aaron, Evaluation in Mediation in Mediating Legal Disputes: Effective Strategies for Lawyers and Mediators 267-305 (Dwight Golann, ed. 1996).

Bernard S. Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution 115-148 (2004).
 
11/3 Simulation
11/10 Special Types of Processes, Parties, and Problems; Practicing Mediation; Ethical Dilemmas
  Beyond Winning: chs. 11-12

Art of Mediation: 6-14, 127-53

Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict 427-41 (3d ed. 2003).

Skim: Eric Galton, Mediation: a Texas Practice Guide, Ch. 14-18 (1993). [This is on reserve at the circulation desk of the library.]
 
11/17 Group Facilitation
  Facilitator's Guide: all

Recommended: Society of Professionals in Dispute Resolution & Consortium on Negotiation and Conflict Resolution, Best Practices for Government Agencies: Guidelines for Using Collaborative Agreement-Seeking Processes (1997) (available on course website and http://www.acrnet.org/resources/index.php).
 
11/24 Thanksgiving Week - No Class
12/1 Simulation

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.