NEGOTIATION AND MEDIATION SEMINAR (INTENSIVE)

Professor C. Menkel-Meadow Fall 2003
Fellows Elizabeth Davidson and Sara Thacker
Negotiation and Mediation Seminar -LAWJ-317-08 (Intensive)

Office 404
Ph. 202-662-9379
fax 202-662-9412
email: meadow@law.georgetown
Office hours: Alternate Monday afternoons 3-4

Course Outline and Requirements

This course is a basic introduction to the theoretical, practical, skills and policy issues in negotiation and mediation as forms of dispute resolution and transaction planning. It will be conducted this semester as an intensive course, meeting every day for two week-ends. Attendance for all class sessions is mandatory. Failure to attend a class or a portion of a class will result in no credit for the course. The class will meet the following dates and times:

Sept. 5 5:45 pm-6:30 pm Course Introduction and requirements
Sept. 12 9:00 am-4:30 pm Room 437
Sept. 13 9:00 am-4:30 pm  
Sept. 14 9:30 am-5:30 pm  
     
Oct. 10 9:30 am-5:00 pm  
Oct. 11 9:30 am-5:15 pm  
Oct. 12 9:00 am-4:45 pm  

Your final paper will be due the last day of exams.

This course is designed to expose you to the various conceptual frameworks for thinking about negotiation and how to practice various forms of negotiation (and ultimately, facilitated negotiation, which is mediation). In this course you will be exposed to cognitive and conceptual models of negotiation (including game theory, theories of conflict and difference, theories of bargaining, argument and principle, problem solving), as well as to behavioral forms of learning (experiential role-plays, different strategies and tactics, information searches and planning, question framing, agreement drafting). There will be an opportunity for video-taped performance and critique.

You will be taught to analyze your own and other classmates’ performances as negotiators and mediators and to learn how to sensitively and acutely analyze your own conceptualization and behavior of the negotiation process, both for the course and for later professional and life skills development.

You will be required to read, write and perform. Given the intensive nature of this course you will have to do all of these things simultaneously and to apply what you are learning right away. You will learn that negotiation is a dynamic and interactive process so that things will change as you are working and you will be dependent on others with whom you are participating. You will be called on to act in many different roles, including as lawyers, clients, observers and critics of yourselves and others. This course will teach you how to act, as well as, think like a lawyer.

We will question all of your assumptions about what it is that lawyers do when they negotiate, including assumptions about scarce resources and fixed pies and desires to “beat the other side.” This course contrasts an adversarial-competitive model of negotiation with the more modern notion of negotiation as an opportunity to solve legal, social, economic and other forms of problems and to do so creatively and with Pareto-optimal solutions. You will be taught to think of negotiation as an opportunity to make troublesome situations better than they might otherwise be without your intervention.

During the first week-end we will concentrate on the basic models of negotiation and apply them to litigation problems. In the second week-end we will look at negotiation in the transactional context and begin an introduction to the mediation (facilitated negotiation) process. As we proceed through the applications of negotiation theory to particular problem areas we will also look at some policy and ethical issues including ethics and truth telling in negotiation, communication and representation issues with clients, appropriate uses of different models of dispute resolution, the role of gender, class, race and personality in negotiation behaviors and the institutionalization of some forms of dispute resolution in the legal system (such as in court-mandated forms of “alternative dispute resolution”). You will also explore collaborative skills and learn how to work with others (both “clients” and other lawyers when you work in teams on some problems).


Course Requirements

1. Attendance is mandatory for all sessions. Do not plan anything else for your professional or personal life for the two week-ends of the course. You will be busy during the day with class and will have reading and writing to do at night between sessions.

2. There will be brief writing assignments during both week-ends and a longer journal assignment and reading to do between sessions. The final paper will be due the last day of exams and will require you to apply what you have learned about negotiation and mediation to develop an analysis of either a problem you have worked on or another one in the real world. This is not a research paper, but is a “thought” paper instead, requiring you to apply the concepts learned in the course.

3. There are readings assigned from four mandatory and one optional sources:

The books are available in the bookstore. I will distribute other articles either in class or through the Distribution Center.

4. This is a graded course. You will be graded on class participation, negotiation simulations, journal and short papers and the final paper (approximately 15 pages). We will not grade you on particular outcomes of negotiation (to encourage you to experiment with new behaviors and more creative and interesting ideas for resolutions), but you will be graded on preparation and commitment to the materials and exercises.

5. This course depends on confidentiality. Do not reveal any facts, information, outcomes or special instructions about a problem until you are told you may. This is to create both a safe place for mutual exploration of new and difficult behaviors and also to ensure that everyone has the same and appropriate amount of information for each assignment.

6. You will be required to conduct part of one negotiation on video-tape for feedback from the instructors. Some of this will be during class sessions, but for some of you it may involve some time outside of the two week-end sessions.

Course Schedule

(Note that times and topics are approximate– we may spend more or less time on certain items as the class proceeds).

Date & Time Topic & Reading Assignment Exercise
September 5
5:45-6:30
Course Introduction, Overview and Requirements
  Getting to Yes, xvii-pg 14 (Intro & Ch. 1)
  Mnookin, Introduction p. 1-10

For first week-end, read all of Getting to Yes; Menkel-Meadow, Toward Another View of Legal Negotiation (available in Distribution Center); Raiffa pp. 7-19; 33-77; Mnookin pp. 1-126; 224-248

You also should review Rules 1.2, 3.3, 4.1 and 8.4 of the Model Rules of Professional Conduct.
 
September 12 (Friday)
9:00 am-10:00

10:00-10:45

10:45-11:00

11:00-12:30

12:30-2:00

2:00-3:00

3:00-3:45



3:45-4:00

4:00-4:30

Introduction to Negotiation

Models of Negotiation I- Distributive and Competitive

Break

Models of Negotiation II- Integrative and Principled

Lunch and Preparation for Walker

Problem-Solving: Negotiate Walker and de-brief

Models of Negotiation III- Mixed Models
   Creating and Claiming Value
   PD theory and games

Break

Negotiate Burgers

Assignment for Rapid handed out

Swansong

Bedding/Swealy





Walker









Devens/Cunningham
 
September 13 (Saturday)
9:00-10:00

10:00-10:45

10:45-11:00

11:00-11:30

11:30-12:30

12:30-1:45

1:45-2:30



2:30-3:15

3:15-3:30

3:30-4:30
 

Negotiate Rapid–Mixed Models

Debrief Rapid–Models of Negotiation IV Problem Solving

Break

Stages and Phases of Negotiation

Role of Law in Negotiation

Lunch and preliminary preparation of

Planning and Preparation for Negotiation
   Dispute Resolution (litigation)
Risk assessment; legal predictions

Client Interviewing and Counseling

Break

Creativity and Problem Solving in Negotiation
 

Rapid v. Scott





Bright/Gold

Klare

Litigation Problem

Negotiation Plan



(Meet w/clients)



Problems and IDEO
September 14 (Sunday)

9:30-10:30


10:30-1:00

1:00-2:00

2:00-3:00


3:00-3:30

3:30-3:45

3:45-5:00


5:00-5:30

 
Submit: Negotiation Plan (9:30 am)

Strategy and Planning Meetings for Litigation Negotiation
   With clients and supervisors

Negotiate Litigation Problem

Lunch

Process and Outcome in Negotiation
   Debrief and assessment

Role of Personality in Negotiation

Break

Ethics in Negotiation
   Valdez v. Alloway

Wrap-up Issues in Litigation (Dispute Resolution)
   Negotiation and Preparation for Next Sessions





Taping






MODE



Confectioners


 

Journal Assignment and Memo for intersessions distributed–Due October 9

Reading for Second Session:
Mnookin, pp. 127-223; 249-323;
Raiffa 91-130; 187-204; 251-274; 288-299; 337-355;
Arrow (optional) chs. 1, 2, 5, 9, 10 and distributed articles (from Distribution Center)


October 10 (Friday)

9:30-10:00 am

10:00-11:00


11:00-12:00

12:00-1:00

1:00-2:00

2:00- 2:45



2:45-3:00

3:00-4:00

4:00-5:00
 


Review of Key Negotiation Concepts

Differences in Litigation and Transactional Negotiation
Role of Context

Role of Information in Negotiation

Barriers to Achieving Negotiated Resolutions

Lunch

Role of Gender and Race in Negotiation
   Reading: Ayres, Menkel-Meadow, Kolb
   (Distributed)

Break

Planning for Transactional Negotiation

Prep for Next Day
 









Exercises



Tapes





Vernon/Green

 
October 11 (Saturday)

9:30-10:30

10:30-10:45

10:45-1:00

1:00-2:00

2:00-3:00

3:00-4:00

4:00-4:15

4:15-5:15
 
Submit Transactional Negotiation Plan for Vernon/Green

Meet with client/supervisors

Break

Negotiate Vernon/Green

Lunch

Debrief Vernon/Green

Drafting Agreements

Break

Coalitions and Multi-Party Negotiation Issues
 


Vernon/Green



Taping









Coalition Game
October 12 (Sunday)

9:00-10:00

10:00-10:30




10:30:11:00

11:00-12:30



12:30-1:30

1:30-2:30




2:30-3:30



3:30-3:45

3:45-4:30

4:30-4:45
 
Mediation

Introduction to Facilitated Negotiation

Contracting for Mediation/Opening Statements
   -suitability
   -ground rules
   -confidentiality

Practicum 1- Opening Statements

Styles of Mediation & Context
   Caucuses/Joint Meetings
   Business/Family Mediations

Lunch

Issues and Agenda Setting in Mediation
   Role of Law in Mediation
   Framing and Re-framing
   Practicum 2

Dealing with Conflict in Mediation
   Empathy Training and Communication
   Practicum 3

Break

Option Generation and Agreement in Mediation

Course Conclusion-Wrap-Up and Evaluation
 


Med/Arb exercise






Ed/Jo

Tapes-Prosando
Scenes from a Mediation
Saving the Last Dance






Ed/Jo


Ed/Jo




Ed/Jo

Final Papers due: Last Day of Exams (no extensions)
For the final paper you will be asked to choose a negotiation or mediation you participated in this course, or select a completed or on-going negotiation or mediation in the real world (from news reports, political memoirs, case studies) and write an analysis, describing the negotiation models that the negotiators used, their assumptions, their behavioral choices and their results and develop a critique of what was effective and what was not, making explicit what your criteria of evaluations are.


Copyright 2004 Carrie Menkel-Meadow. 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.