DISPUTE RESOLUTION, Fall 2008
Prof. Paula M. Young
Office Phone: 935-4349, ext. 1221; Home Phone: 935-1678
You can reach the Westlaw student representatives Nathaniel Coburn and Ryan Nuzzo, if you have troubles with TWEN.
During this course, students will:
SUMMARY OF STUDENT GRADING:
Any student who needs special accommodations based on a legally protected disability must contact Professor Young as early as possible so I can make appropriate arrangements.
I will determine your final course grade by your point totals from the activities listed below. The maximum possible points for each course component are:
|Module I & II Examlette (graded as group)||70 points|
|Module III Examlette (graded individually)||100 points|
|TOTAL Possible Points:||270 points|
Thus, a part of your grade will depend on the ability of your Buzz Group members to work effectively together and quickly resolve any conflicts that arise during the course of your interaction on the first Examlette.
COURSE OVERVIEW:For top-down learners who need to see the big picture, the course is divided generally into three modules: (1) understanding the nature of conflict, analyzing disputes, and choosing dispute resolution options; (2) negotiation; and (3) mediation representation and arbitration.
COURSE OBJECTIVE:1. Develop students’ skills in analyzing the nature and source of the conflict. The course begins with classes discussing conflict, its causes, and possible interventions. I also evaluate our personal approaches to conflict and the way that approach may affect our approach to negotiation and conflict resolution. Throughout the course, we will discuss the role of context in resolving disputes and how it affects analysis and practice. For example, it may make a real difference whether a negotiation involves public or private players, repeat players or one-time participants; whether it occurs in the commercial, tort or family context; whether the parties see the negotiation context as a "deal" or a "dispute." Many practitioners and analysts would argue that differences in culture, gender, race, and personal styles have a pervasive and profound effect on bargaining dynamics and outcomes.
First, this class is unlike many classes you have taken so far. Students typically have trouble at first shifting from the black letter law focus of other classes to the more conceptual, cross-disciplinary approach required in this skills-oriented course. As we discuss in the first class, we are also asking you to use more of the creative right-side of your brains rather than the analytical left-sides of your brains.
Second, in this course, you will not get by in a passive learning role. Most days you will be doing something other than sitting in your seats taking notes. In fact, you will have copies of the overheads in the Supplemental Materials, so note-taking definitely plays a smaller role in your learning. For the kinetic learners, we will have several moments in most classes when we will all be moving around the room or watching movement in the room. For the tactile learners, we use structured exercises and role-plays to isolate and emphasize specific analytic points and essential skills. A few of you will perform some role-plays before the whole class in “Fishbowl” exercises. You will perform most of the role-plays, however, in negotiating pairs or four-somes involving all members of the class. For visual learners, we will use visual images, cartoons, and video to illustrate points. For oral and aural learners, we will have class discussions and opportunities for you to interact with your Buzz Group. For verbal learners, you will do what makes you most successful in class – you will read the materials. For people who want to think more deeply about a topic before offering us your insight about it, I have created the Extended Class Discussion tab on the TWEN site (at the Forums button) for that delayed, and we hope more thoughtful, communication. (See discussion below.)
Third, I try to make the class as relaxed and risk-free as possible. You are learning new skills and we should be gentle with each other as you do so. You will work hard in the class, but I also expect you will have some fun.
Your thorough preparation of the assigned readings is essential for us to engage in rigorous class discussions and effective simulation. Simulations, role-plays, and other exercises are an integral part of the course. These exercises will give you an opportunity to try out preparation tools and tactical moves, to experiment with new approaches, and to reflect on your performances. Because time is scarce, it is essential to read through the assigned readings, handouts, and role-play materials prior to class. Feel free to call or e-mail Professor Young. It may also be the type of inquiry that requires further comment from me on the TWEN site. Students may earn, or lose, points on the final grade through consistent, intelligent contributions to class discussions and simulations, or the lack thereof. (See grading section above.)
Readings serve to provide the underlying theory supporting any type of negotiation move or ADR intervention. The readings will also help you develop intuition about more complex real-world situations. Most of the readings take the form of law review articles, Professor Young's columns published in the St. Louis Lawyer , and the narrative material in the text books. For some of you, the shift from the doctrinal courses you had first year (with their heavy emphasis on case law) to this class, may be a bit disorienting. Because ADR is still an emerging field, little case law exists on many of the issues we discuss. Thus, the focus of the articles and other readings will be more top-down than bottom-up learning. The articles will give you the bigger picture on a topic and we will then work more specifically with the concepts in class.
I generally treat the readings as the background information you need to participate in the exercises and role-plays. Also, you cannot perform well on the examlettes if you have not read the assigned material. I generally do not dissect the readings in class, so if you have a question about the readings, please raise it in class or on the TWEN site at the Extended Class Discussion tab. See below for a fuller discussion of this tab.
I also suggest that you organize the readings for this course in a large three-ring binder, by class, using number tabs for each class. If you throw all the readings and outlines in a box (one student's confession to Professor Young one year), you will not have the access you need to it to perform well on the examlettes.
Negotiation and Mediation Exercises
Nearly every week, you will be assigned a role, paired with one or more counterparts, given instructions (often including confidential information), and asked to prepare and carry out an exercise before or during class. These exercises are an essential vehicle for learning in the class. One major requirement, therefore, is that you conscientiously prepare for, carry out, and be ready to share insights from the exercises with the class.
In our class discussions, I am primarily interested in your faithful and creative participation, the quality and originality of your discussion of particular strategies, and your reflections on how you might have done better. Failure to prepare and carry out these exercises will adversely affect your class participation grade and will harm your assigned negotiation partners, whose learning experience depends on your being available and prepared.
Many of the exercises include confidential instructions. Do not show these confidential instructions to others, unless otherwise instructed. You may choose to discuss or reveal some of their content -- indeed, communicating your interests clearly is essential to effective negotiation or mediation -- but you must not physically show others your actual confidential instruction sheets. This rule largely mirrors reality because, for strategic reasons, in most situations you will not likely reveal all of your underlying interests and available information to your negotiating counterparts.
The instructions for the exercises are designed to be self-explanatory. Please follow the instructions carefully.
Though most of the negotiation and mediation exercises are extreme simplifications of reality, they intend to isolate and illuminate particular aspects that do arise in real negotiation situations. For those exercises that have fixed quantitative goals, you should take the numbers as representative of your true interests and try to do as well as you can, subject to whatever considerations of responsibility, reputation, and ethics you expect would shape your behavior in a similar real-world negotiation. For those exercises with more complex, less quantitative goals or mixed interests, you should think hard about what interests you would care about, and what trade-offs you would be willing to make, in the specified situation.
Some general rules for role players include the following:
MORE ABOUT GRADING COMPONENTS:
In the first module of the course (Understanding Conflict), I use student volunteers to play roles in one “Fishbowl” role-play (Fred & Mary parenting dispute). Later in the semester, I will need four volunteers for a listening exercise.
Students who volunteer for these roles earn up to 40 points and are exempt from writing the role-play required later in the course (see discussion below) or singing to us or writing an ADR-related song. I will tend to grade this portion of the class work liberally, but I expect you to be prepared. The in-class role-plays are typically about 15 minutes to 30 minutes in length.
I will plan to give the assignment to the role-players a week in advance of the assigned class. I may also provide some supplemental readings that may help students structure the presentation. Please check with me to make certain you have what you need to play your roles effectively. Fishbowl participants will typically take a position at a table at the front of the class.
If you participate in a Fishbowl role-play, you should complete shortly after you give your presentation, but by no later than the last class, the Individual Contribution Peer Rating Form found at the end of the syllabus. This completed form helps me remember who should get points for the Fishbowl role-play and it ensures that all Fishbowl participants contribute to the exercise. The forms are designed to prevent “social loafing.” See discussion below.
If you do not volunteer to do a Fishbowl role-play before the class, write a mediation song, or to sing a mediation song (see discussion below), you will write later in the semester a role-play worth 40 points. I will submit the best of the role-plays to the ABA for use in the Representation in Mediation Competition. The ABA has used seven ASL role-plays in past competitions. This recognition will make a nice entry on the students’ resumes and a nice story on our website. If you like, you can begin drafting role-plays as soon as you think you understand the format. I have posted on TWEN some sample role-plays and the ABA guidelines for the role-plays. For more information see http://www.abanet.org/dispute/mediationcomp.html.
In drafting the role-plays, keep in mind the following guidelines:
(1) The role-plays should contain three parts: (a) general information for both parties; (b) confidential facts for one party; and (c) confidential facts for the other party.
(2) Draft them so either a man or a woman could play the role of the lawyer or the client, using gender neutral names like Marty, Chris, etc.
(3) Make sure the negotiating positions of each side are reasonably balanced. In other words, don’t make one side the clear winner.
(4) Attempt to make the situation involve possibilities for integrative, “expanding the pie,” interest-based negotiations. I am trying to teach students a problem-solving approach to negotiation, although you can put an item in the problem that requires more distributive negotiation.
(5) Make sure both sides have the information they need to negotiate appropriately. In other words, don’t disclose information about Team B to Team A, but then fail to give that same information to Team B. It can be confusing. At the same time, Team A may have information about itself that it does not want to disclose or will disclose only under certain situations to Team B and vice versa.
(6) It should be between three and six pages in length, although you can attach exhibits (like an excerpt from a contract).
Singing for Points
To open Module III, several students in the past agreed to sing for the class one to three mediation-related songs. Students enjoyed the songs and the singing so I will again give three or four students the opportunity to satisfy the Creative Presentation part of the class in this way. Other students can satisfy this requirement by writing an ADR-related song. In 2006, the ABA’s Dispute Resolution Magazine published Andrew Call’s song. I have posted several examples of original songs on TWEN. When you turn in your song, be sure to include the original lyrics and the name of the performing artist.
Your class participation grade will consist of three parts.
“Extended Class Discussion” TWEN Postings
We have an additional forum to give people who are more reluctant to speak up in class an opportunity to earn class participation points. It also gives all of us the opportunity to extend the class discussion if we run out of time to answer your questions or explore a topic. You can also post a comment about an ADR-related news story or a personal experience involving the skills you are learning in class. To earn points (1 point per post) you must make “substantive” posts. Thus comments like: “Fun negotiation exercise today in class” or “I enjoyed the Fishbowl exercise” or “I agree” will not earn you points. If, however, you explain why the exercise was fun or interesting or added to your learning or why you enjoyed the Fishbowl exercise, you will earn points. You may also comment about the representation of ADR in films and TV programs. Or you can describe the use of ADR techniques in situations reported in news stories. Or you might discuss how the use of an ADR process may have led to a different outcome in a situation reported in the news. You may also share an experience in which you used the skills you are learning in class.
Other In-Class Participation
You will receive an individual grade for your class participation that does not fall within the types of class participation I have already described. I will base your “other” class participation grade primarily on how well you contribute to the class discussions and on how enthusiastically you participate in role-playing exercises. Our goal is to learn from one another. For this approach to work, each of you must speak up in class, on a frequent basis. I expect you to make comments based on the readings and based on your prior experiences. I also expect you to ask questions of me and your fellow students. Often a good question is just as valuable as a good statement. You must be physically present to participate, so I will also factor unexcused lateness or absences into your participation grade. (See discussion of the attendance policy below.)
Much of the in-class work you will do in this class will be in your Buzz Group. You should choose a Buzz Group consisting of four persons. You may wish to choose people you already know well, but you may also wish to associate with a person who has a different learning style, even if you do not know him or her well. By Class 3, please provide a list of the persons in your Buzz Group and a name for your group. This is your first opportunity to make your professor laugh. It is good to make your professor laugh.
The colleagues in this group will work together on various in-class exercises and on Examlette I. At the end of the in-class exercises, I will ask a member of each Buzz Group to report some of the group’s insights or conclusions. Students in the past said they rotated this “job” so each member of the Buzz Group earned class participation points.
You should complete at the end of the semester the Individual Contribution Peer Rating Form found at the end of the syllabus for your Buzz Group.
Empirical research on learning shows that students prefer frequent, timely feedback. Unfortunately, most law school professors test once at the end of the semester. Students tend to “move on” after taking the final exam and rarely use their performance on that exam to improve their performance on the next exam. I use multiple examlettes, graded as quickly as I can, to provide you with early and frequent feedback. You will not have a final exam, but you will be working on the last examlette during the exam week for this class. Each examlette will be an open-book, take home exam. You will have at least 48 hours to complete each one.
I will grade the Second Examlette on an individual basis. You will work on these examlettes alone, without collaboration. For the past two years, I have experimented with an unconventional format for the Second Examlette. Students provided a caption to a cartoon. I then submitted the best captions to John Barkai, who publishes a cartoon captioning exercise called “The Lighter Side” in the magazine published by the ABA Section on Dispute Resolution. Issues of Dispute Resolution Magazine have published the cartoon captions written by many ASL students. Students have enjoyed this aspect of the class, so I will make the Second Examlette this year consist of the cartoon caption and two or more essay questions. You will get full credit for the cartoon caption as long as it applies the principles of the class and is written in legible English.
You will complete the First Examlette -- on understanding conflict and negotiation -- as a Buzz Group. You may collaborate freely on this exam and I encourage creative thinking in analyzing the factual problem I present. You will turn in one copy of your answers for Examlette I with your Group Examination Numbers (more about this in the instructions to that examlette) appearing on the copy. Most students liked the group exam and said they learned more and thought more creatively by working with their Buzz Group members. The final work product tests not only your substantive knowledge and analytical skills, but it also tests your ability to work effectively in the group and to manage conflict. Most students felt they had developed sufficient conflict resolution skills by that time in the semester to make the process enjoyable.
However, Professor Young also heard that in a couple of groups, one member dictated the content of the final work product or assumed the role of typist and then made changes he or she did not pass by other Buzz Group members for approval. (This behavior could lead to an Honor Code complaint.) One group inadvertently turned in an exam exceeding the page limit because the typist used the wrong font type or size. Because the group left no time for a final group proofreading session, the group had to strike about one-quarter of the exam answer from the text it had submitted to me to grade. So, the collaboration process extends right up to the time you turn in the exam. Plan to meet one more time after you have typed up the examlette and before you file it, with a date/time stamp, in the drop box outside Donna Horn’s office.
Here’s another tip: Some groups tried to manage the time limit issue by delegating one exam question to one group member, then delegating another question to a second group member, and so on. The answers tended to be uneven in quality and not very creative. If you choose this approach, be sure you have your best writer create some uniformity in the writing style and make sure all group members vet all the answers before you turn in the examlette. I have given you at least four days to work on the group-graded exam, so you should have the time to meet one more time as a group to complete final edits and improve the group effort.
Some groups worked instead as a group on each answer, jointly analyzing the question and brainstorming answers. They then had one person type up all the answers. Typically, the groups using the second approach had better scores overall, as long as one person did not dominate the group participation. The goal of this exercise is to see if you can make, in this case, four heads work better than one.
I have posted sample answers to past exams on TWEN. I have also placed on reserve three things in connection with prior years’ examlettes: (1) several of the exams that received top grades, (2) samples of the best answers given to each question, and (3) the grading sheets.
As a general matter, I will look for the extent to which you understand the concepts, skills and theories set out in the readings or discussed in class. I will consider how you analyze the fact pattern and apply these concepts, skills, and theories to it. Most years, the test questions do not change, but the factual scenarios do. All the examlette questions will be based on the same set of facts.
When grading the exams, I am looking for the level of understanding students show in their answers. Students who apply the information, detail the analysis, and conclude do better than students whose work is merely descriptive with little detail. You should be sure to apply the theory and concepts you learn in class to the specific facts of the exam. See below.
Levels of Understanding
· Students reach a high level of understanding when they can
o Apply the information,
o Detail the analysis, and
· A lesser level of understanding occurs when students
o Apply the information,
o Come to conclusions, but
o Give no detail in the analysis.
· An even lesser level of understanding occurs when students’:
o Work is descriptive, even if detailed.
· The lowest level of learning occurs when students’:
o Work is descriptive, but without detail.
To analogize this process to your LP experience, I give higher grades to students who do a detailed “Rule Statement,” “Rule Explanation,” then a detailed “Analysis,” followed by a well supported “Conclusion.”
Examlette Grading Penalties
In prior semesters, several students incurred examlette grading penalties because they did not adhere to the margin, spacing, and font requirements I impose. These requirements appear in the instructions for the examlette and I will strictly impose them. You may not use any strategy that tries to press onto more pages more text than the instructions allow. In the past, I allowed students to provide information in the form of double-spaced lists. Some students instead used single-spaced lists. In those situations, I did not grade one or two answers to the examlette questions because they exceeded the page limit. Two students used 12-point fonts -- other than the permitted Times New Roman font -- that again pressed more text on to each line. In those situations, I did not grade the last answer to the examlette questions. One or two students created narrower top, bottom, and side margins. They, too, incurred a grading penalty.
These violations are easy to spot because these examlette answers stand out from the uniform form of the other students’ answers.
Individual Contribution Rating Form
Please note that while I will give up to 40 points for the Fishbowl role-play (for example), each individual member of the group may receive more or less than the group score depending on how the remaining group members evaluate his or her individual contribution and effort. This peer review should limit “social-loafing” or “free-riding.” This approach also ensures that the quality of the group projects benefits from the input of all your group members, not just a few.
I have put copies of the rating forms at the end of this syllabus and under the “Syllabus” tab of the TWEN site.
At the end of the semester, each Buzz Group and Fishbowl role-play group must turn in one copy of the “Individual Contribution Peer Rating Form.” You will submit this form for each Buzz Group and each Fishbowl role-play group in which you participate. You will fill in each group member’s Student Grading Number (or student name) and then, as a group, determine the ratings for the “Percent of Individual Contribution” column. You must make these ratings as a group, talk about each person’s contribution, and reach an agreement about the ranking for each group member. If you feel that a group member has not made an equal contribution to the project or presentation, then you can give him or her a rating of less than 100 percent. You must meet, however, the following conditions:
I encourage you to use this process as a performance management/conflict resolution tool throughout your Fishbowl role-play or Buzz Group work. You can not use this evaluation to “even the score” at the end of the semester. It will require you to manage any conflicts in the group early, frequently, and effectively, using any of the dispute resolution skills we learn in class. I will play a part in this process as needed, so contact me if you have concerns about a group member.
In prior semesters, Buzz Groups provided class members with an outline of the reading materials, lecture, discussion, and exercise de-briefing for one class during the semester. All of the materials have been outlined, so your class will benefit from the work of prior students. I have posted the segments on the Outline Segment tab of TWEN. You will find them helpful when you complete the examlettes. However, do not rely on them solely to answer the examlette questions if you expect to get a good grade. You must still read the assigned readings. You may also find that they do not track the current course schedule. Over the past four years, I have slowed the pace of the class and eliminated some topics. You should still find the outlines helpful.
Attendance is mandatory. If you miss more than two classes, without a pre-approved excuse, I will either dismiss you for excessive absences or fail you. I will also factor tardiness and absences into your class participation grade. If you do need to miss a class and you have a valid excuse, please write me a note or send me an e-mail in advance of class. Excused absences will still count against the two-class absence, but I will not hold them against you when I calculate your participation grade.
I treat non-preparedness as an absence. I will circulate an attendance sheet every day. If you do not initial the sheet you will be marked absent. If I call on you and you are unprepared you will also be marked absent.
New Attendance Policies: Just so you know, the faculty passed the following changes to the attendance policy this past year. The new attendance provision increases the absence from 10 percent to 15 percent. An individual instructor may impose a more stringent attendance requirement if presented in writing in the syllabus for the course. The individual teacher has no discretion to allow any “make-up” work, including briefing of cases or special assignments, to offset an excessive absence. The new provision states:
No student may miss more than fifteen percent (15%) of the class meetings in any course or seminar. For example, for a course that meets three times per week, a student may miss no more than five classes; for a course that meets twice a week, a student may miss no more than four classes; for a course that meets once a week, a student may miss no more than two classes. A student who is tardy or who exits a class early may be marked as absent. Under no circumstances shall a Professor be permitted to allow a student to “make up” an absence from a regularly scheduled class. Any student exceeding the maximum number of absences in a course may only seek relief through the Waivers and Appeals process set forth in Section XIII of the Academic Standards.
In addition, a student will violate the Code of Academic Conduct when:
(7) requesting that another person sign a student’s name on the attendance sheet during a class that he or she did not attend, arrived late for or left early for, or signing another student’s name on an attendance sheet.
TWEN SITE:I have set up a virtual classroom on Westlaw called TWEN. You may access this website through the www.lawschool.westlaw.com home page.
OTHER CLASSROOM MATTERS:Use of computers in class: The law school faculty adopted a provision of the Academic Standards providing that:
Use of computers during class periods for any purpose other than note-taking is prohibited. The instructor may establish a more restrictive computer use policy.
In keeping with this policy, not only will I refer any violator of this rule to the Dean for
appropriate disciplinary action, but I will also count any violator as absent
for the day. Please note that Article III, B of the Academic Standards
provides: “Any student who has reason to believe a violation of the Code of
Academic Conduct has occurred must report that belief to the Dean. Failure to
do so is a violation of the Code of Academic Conduct.”
As a pedagogical and career matter, you have a strong interest in ensuring that the school maintains its ABA accreditation to increase the value in the marketplace of your degree from this school. During an ABA site inspection, the inspector expressed great distress at the number of students surfing the net, playing games, downloading music, and engaging in extended e-mail conversations with friends during class. This behavior puts this institution and your career opportunities at risk. Please don’t do it in our class.
BIOGRAPHICAL INFORMATION:I think you should know your audience. If you want to learn more about me, please see my resume on TWEN.
I also ask that you complete the Biographical Information Sheet that I included in the reading assignment for the first class. A copy of it appears at the end of the syllabus. It gives us more information about my audience. Please return that information sheet to me during Class 5.
OFFICE HOURS:I will hold official office hours on Monday, 10 a.m. to noon and 3 p.m. to 5 p.m.; Tuesday and Thursday, 1 p.m. to 2 p.m.; and Wednesday, 10 a.m. to 5 p.m. Other times by appointment. My door is usually open, so please feel free to talk with me if I am in my office at other times. I am also available by e-mail.
WEBSITES YOU MAY FIND USEFUL:
Quite a few web sites are devoted to ADR. Some examples include:
Virginia:http://www.courts.state.va.us/drs/ (main webpage for court-connected programs) http://www.courts.state.va.us/drs/training/home.html (information about certification requirements in Virginia) http://www.courts.state.va.us/drs/forms/home.html (Virginia-related mediation forms) http://www.courts.state.va.us/cmcl/cmcl.htm (forum for Virginia-related mediation networking)
See also Virginia Chapter of the Association for Conflict Resolution
c/o Lawrence Martin, Treasurer
2210 Executive Drive, Suite A
Hampton, VA 23666-2430
Tennessee:http://www.tsc.state.tn.us/geninfo/Programs/ADR/adrdir.asp (about court-connected programs) http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/TNRulesOfCourt/06SUPCT25_end.htm#31 (Rule 31 roster requirements)
Kentucky:http://courts.ky.gov/stateprograms/mediation/ (main webpage for court-connected programs) http://courts.ky.gov/stateprograms/mediation/mediationforms.htm (roster forms and information)
West Virginia:http://www.state.wv.us/wvsca/familyct/cover.htm (family mediation program)
North Carolina:http://www.nccourts.org/Courts/CRS/Councils/DRC/Default.asp (North Carolina Dispute Resolution Commission main webpage)
South Carolina:http://www.scbar.org/member/adr/training.asp (training) http://www.judicial.state.sc.us/courtReg/displayRule.cfm?ruleID=15.0&subRuleID=&ruleType=ADR (certifications requirements)
Maryland:http://www.courts.state.md.us/macro/ (main web page for court-connected mediation programs)
Georgia:http://www.godr.org/odr.html (main webpage with links to roster requirements, training, and ethics rules)
Florida:http://www.flcourts.org/gen_public/adr/index.shtml (main webpage with links to certification requirements and ethics rules)
Pennsylvania:http://www.courts.state.pa.us (main web page with searchable links to mediation-related information) http://www.divorcenet.com/states/pennsylvania/evolution_of_mediation (article about history of mediation in state) http://www.pacode.com/ (Civil Procedure Rules Title 231 sections 1940.1 to 1940.8 governing custody mediation, including mediator qualifications)
Ohio:http://www.disputeresolution.ohio.gov/resources.htm (main web page for Ohio Commission on Dispute Resolution & Conflict Management)
National & International Organizations:http://www.acresolution.org (Association for Conflict Resolution (ACR))
Other ADR Resources:http://www.cardozo.yu.edu/kukin/ADRResources.asp (ADR resource list, including graduate ADR programs) http://www.apeacemaker.net (National Conference on Peacemaking and Conflict Resolution)
Third-Party Providers:http://www.jamsadr.com (a dispute resolution organization)
LAWYER AS PROBLEM SOLVER CERTIFICATE PROGRAM:
The faculty of the Appalachian School of Law voted to establish ASL's first certificate program. Students
may earn this certificate by completing the program's course requirements.
The certificate program is called Lawyer as Problem Solver. This program has a broader reach than programs at some other schools that focus only on alternative dispute resolution. The Lawyer as Problem Solver program focuses on the role of the modern attorney in facilitating problem solving for clients both inside and outside of the courtroom. The program seeks to provide students with the skills they need to effectively serve their clients, including skills in oral and written communication, interviewing and counseling, negotiation, dispute resolution, coalition-building, decision-making, teamwork, and leadership.
In 2007, approximately 15 percent of the graduating class earned the certificate. In 2008, approximately 20 percent of the graduating class earned the certificate. In 2009, we expect 30 percent of the graduating class to earn the certificate based on the enrollment in the ADR-related seminar courses.
Individual Contribution Peer Rating Form
For Buzz Group
|Buzz Group Members’ Student Grading Numbers||Percent of Individual Contribution|
|Average (must equal 100%)||_____%|
(To preserve grading anonymity, use only your Student Grading Numbers.)
EXAMPLE1. Aimee Mann 100%
Individual Contribution Peer Rating Form
For “Fishbowl” Role-play
(if you did one)
|Group Members’ Student Grading Numbers||Percent of Individual Contribution|
|Average (must equal 100%)||_____%|
(To preserve grading anonymity, use only your Student Grading Numbers.)
1. Garth Brooks 100%
2. January Jones 115%
3. Tiger Woods 100%
Biographical Information Sheet
You will complete this two-page sheet over the course of two class periods -- Classes 1 and 2 -- as you read about and complete two self-assessment exercises. Plan to return the completed form to Professor Young at the end of the second class.
I will keep the information in this survey confidential, other than to report aggregate numbers. For instance, I might mention in class or in an article that one-third of the students in the class identify themselves as tactile learners.
* * *
College or university:
Any advanced degrees or special training:
Prior occupations and work expertise:
Social, political or religious interests you choose to share with me (you are not required to disclose this information):
Class 1 Materials: Information Absorption Style (indicate by using the number 1 and 2 for your dominant (1) and secondary (2) absorption style):
______ verbal _____ visual ______oral
______aural _____tactile _______kinesthetic
Information Processing Style (choose one in each pair):
Motivation (choose one in the pair):
Class 2 Materials: Score on Thomas-Kilmann Conflict Mode Instrument (p. 6)(transfer to this sheet the numerical scores for each column):
Competing:___ Collaborating:___ Compromising:___ Avoiding:___Accomodating:___
Class Points Checklist
Due Date: As indicated in class calendar
Due Date: 5 p.m. of scheduled exam day
|TOTAL Possible Points:||270 points|
Class Assignments List
Please refer to the “Class Key” for the specific dates of each class, including make-up classes, and examlettes.
MODULE 1: Understanding Conflict
Class 1: Discussion of Course Syllabus; Learning Styles; Teaching Style; and Expectations about Course.
Readings: Supplemental Materials, pp. 1-1 to 1-35.
- Press Release, Unique Aspects of ASL's Alternative Dispute Resolution Program Highlighted on New ABA-Sponsored Website.
- What's Hot and What's Not in the Legal Profession, Letter to Law School Dean's from Laura Metzger, the Director of the ABA (June 20, 2008).
- Cathy Cronin-Harris, Why Take ADR Courses in Law School, Committee Updates, ABA Section of Dispute Resolution, available at http://www.abanet.org/dch/committtee.cfm?com=DR017500 (accessed April 25, 2008 ).
- Jill Chanen, Is there a Specialist in the House?, ABA Journal, July 2008, at 11.
- M.H. Sam Jacobson, A Primer on Learning Styles: Reaching Every Student, 25 SEATTLE U. L. REV. 139 (2001).
Planned Activities: Discussion of perceptions about class and ADR; ID of learning style; discussion of ADR in law schools; discussion of left-mode/right-mode brain characteristics.
Class 2: Understanding Conflict, Part I: Approaches to Conflict.
Readings: Module 1 Supplemental Materials, pp. 1-36 to 1-48.
Planned Activities: Choose Buzz Group members and name for Buzz Group
- Provide list of Buzz Group members and name for group.
- Discussion of power-based, rights-based, and interest-based approaches to conflict; movie clip from John Q.
Class 3: Overview of Available Dispute Resolution Processes: Toys and Tools
- Mediation Representation, pp. 67-69 (definition of mediation), 275-302 (breaking impasse with alternatives to mediation) & skim Appendices J (final-offer arbitration rules), K (mini-trial procedures), & L (CPR mini-trial procedures).
- Module 1 Supplemental Materials, pp. 1-49 to 1-50.
Planned Activities: Lecture on dispute resolution processes.
Class 4: Understanding Conflict, Part II: Opportunities Inherent in any Crisis or Conflict; Naming, Blaming, Claiming.
- Module 1 Supplemental Materials, pp. 1-51 to 1-60.
Planned Activities: Obtain volunteers for first fishbowl role-play exercise (Fred & Mary divorce dispute for Class 6); exercise identifying student attitudes about conflict; discussion of benefits and downside risks of conflict; short lecture on naming, blaming, claiming; discussion of concepts; short lecture on dispute pyramids.
Class 5: Understanding Conflict, Part III : Personal Conflict-Handling Styles.
- Module 1 Supplemental Materials, pp. 1-61 to 1-85.
Additional Class Prep:
- Read and complete Thomas-Kilmann Conflict Mode Instrumentbefore class.
- Transfer data to Biographical Information Sheet; turn in sheet at end of class.
Planned Activities: Discussion of personal conflict styles; Buzz Group exercise applying conflict styles to factual situation.
Class 6: Understanding Conflict, Part IV: Sphere of Conflict.
- Mediation Representation text, pp. 104-114 (on impediments); 114-121 (cases suitable for mediation)
- Module 1 Supplemental Materials, pp. 1-86 to 1-105.
Planned Activities: Fish bowl role-play with Fred and Mary (unfacilitated positional/adversarial negotiation), with de-briefing.
Class 7: Role of Litigation in Dispute Resolution; Choice of Process.
- Mediation Representation, pp. 13-16 (role of negotiation in litigation context); 17 (key features of adversarial negotiation); 27-29 (lawyer's negotiating habits).
- Module 1 Supplemental Materials, pp. 1-106 to 1-148.
Additional Class Prep:
- Please read the Vanishing Trial Discussion Questions before class (Supplemental Materials, pp. 1-136 to 1-148). Check TWEN Additional Class Prep tab for the questions assigned to your Buzz Group. You should plan to discuss those answers in class.
Planned Activities: Lecture on role of litigation in dispute resolution; Buzz Group discussion of advantages and disadvantages of litigation.
MODULE 2: Interest-Based Negotiation Theory & Techniques
Class 8: Introduction to Negotiation, Part I: Adversarial vs. Problem-Solving Negotiation Approaches.
- Mediation Representation, pp.16-20 (adversarial negotiation); 24-27 (adversarial strategy); 30-34 (problem-solving negotiation).
- Be sure to read summaries at pp. 17, 31 & 56, 63-65.
- Mediation Representation, skim pp. 34-36 (preparation); 41-44 (strategies at table), which will be repetitive of some information in Getting to Yes.
- Module 2 Supplemental Materials, pp. 2-1 to 2-15.
Planned Activities: Lecture on Schneider study of effective negotiators.
Class 9: Introduction to Negotiation Part II: Hard-Bargaining Tactics
- Getting to Yes, pp. Introduction, 1-14 (don't bargain over positions) & 129-143 (taming the hard bargainer).
- Module 2 Supplemental Materials, pp. 2-16 to 2-26.
Planned Activities: Short lecture on hard-bargaining tactics; video negotiation of the Hollywood Divorce; de-briefing of video.
Class 10: Introduction to Negotiation, Part III : Negotiating Terminology and Developing BATNAs.
- Mediation Representation, pp. 36 & 44-47 (reservation value); 47-51 (resolving distributive conflicts).
- Getting to Yes, pp. 97-106 (re BATNA); 179 & 183-84 (BATNA as source of negotiating power).
- Module 2 Supplemental Materials, pp. 2-27 to 2-31.
Planned Activities: Definitions – ZOPA, reservation value, zero sum or distributive negotiation, BATNA, WATNA, & MLATNA; Sara & Jim's car negotiation; Pretty Woman film clip; de-brief clip.
Class 11: Getting to Yes, Part I: Introduction; Separating the People from the Problem; Creating Accurate Perceptions.
- Getting to Yes, pp. 17- 29 (separate the people from the problem); 157-165 (Q4); 179-181 (good working relationship as source of power).
- Module 2 Supplemental Materials, pp. 2-32 to 2-39.
Planned Activities: Lecture on four-part recipe for negotiating success; criteria for judging a successful negotiation; Fred & Mary mediation.
Class 12: Getting to Yes, Part I: Clear Communications – Questioning.
- Getting to Yes, pp. 32-39 (communication); 111-12 (ask questions and pause).
- Mediation Representation, pp. 82-84 (techniques of mediators), 96-104 (client interviewing techniques).
- Module 2 Supplemental Materials, pp. 2-40 to 2-50.
Planned Activities: Film clip from 40-Year Old Virgin; short lecture on four communications skills need in negotiation (overview); short lecture and exercises on questioning techniques; information gathering between Pretty Woman negotiating partners.
Class 13: Getting to Yes, Part I: Clear Communication - Active Listening Skills.
- Getting to Yes, pp. 34 (active listening), 54 (listening as a response to attacks);
180-81 (listening as a source of power)
- Module 2 Supplemental Materials, pp. 2-51 to 2-59.
Additional Class Prep: Complete listening skills tests from Madelyn Burley-Allen, Listening: The Forgotten Skill (1995), Supplemental Materials, pp. 2-51 to 2-54.
Other Optional Resources:
- http://humanresources.about.com/od/interpersonalcommunicatio1/a/nonverbal_com.htm (regarding non-verbal communication)
Planned Activities: Discussion of listening skills self-tests; short lecture on essential components of good listening skills; exercise designed to highlight listening skills.
Class 14: Getting to Yes, Part I: Clear Communication - Active Listening Skills (cont.)
- Module 2 Supplemental Materials, pp. 2-60 to 2-70.
Additional Class Prep: Complete listening skills tests from Madelyn Burley-Allen, Listening: The Forgotten Skill (1995), Supplemental Materials, pp. 2-61 to 2-63 and exercise at Supplemental Materials, pp. 2-69.
Planned Activities: Lecture on listening skills; lecture of empathetic listening; empathetic listening skills exercise.
Class 15: Getting to Yes, Part II (cont.): Focus on Interests, Not Positions.
- Getting to Yes, pp. 40-55, 151-153 (Q1) and 177-187(review Q10).
- Module 2 Supplemental Materials, pp. 2-71 to 2-78.
Planned Activities: Pulp Fiction clip; film de-briefing; Cake dispute negotiation; de-briefing.
Class 16: Getting to Yes, Part II (cont.): Focus on Interests, Not Positions.
Planned Activities: For Love or Money interest-identification exercise. De-brief exercise (if time).
Class 17: Getting to Yes, Part II (cont.): Standing in the Other Person's Shoes; Clear Communication - Paraphrasing.
- Getting to Yes, pp. 32-36 (review communication); 54-55 (review hard on the problem, soft on the people); 76-80 (make their decision easy); 107-128 (negotiation jujitsu); 181-82 (paraphrasing as source of power).
- Module 2 Supplemental Materials, pp. 2-79 to 2-85.
Planned Activities: Finish de-briefing of For Love or Money interest-ID exercise; lecture on standing in the opponent's shoes; film clips: Thirteen Days & Fog of War; discussion of film clips; paraphrasing exercise.
Class 18: Getting to Yes, Part III : Generate a Variety of Options.
- Getting to Yes, pp. 56-80 (inventing options for mutual gain) & 171-175 (Q8).
- Mediation Representation, pp. 36-39 (value to bring to table); 79-80 (generating options for settlement).
- Module 2 Supplemental Materials, pp. 2-86 to 2-88.
Planned Activities: Lecture on brainstorming ground rules; Welcome to Mooseport film clip; Chicken Run film clip; claiming value Buzz Group exercise.
Class 19: Getting to Yes, Part III (cont.): Generate a Variety of Options.
- Module 2 Supplemental Materials, pp. 2-89 to 2-97.
Additional Class Prep: Review Immovable Mule Role-play (Classes 16 & 17)
Planned Activities: Discussion of creativity; Monsters Inc. clip; apply brainstorming techniques to For Love or Money role-play.
First Examlette distributed Monday, October 27, 2008 at 1:30 p.m. , by e-mail or via TWEN.
Question Cut-off Deadline: Wednesday, October 30, 2008 at 4 p.m.
FIRST EXAMLETTE DUE Friday, October 31, 2008 by 5:00 p.m. in drop box outside Donna Horn 's station, along with required certification and date-stamped, or by email to Nancy Pruitt at email@example.com .
Class 20: Getting to Yes, Part IV: Insist on Using Objective Criteria.
- Getting to Yes, pp. 81-94; 153-157 (Q2 & Q3).
- Module 2 Supplemental Materials, pp. 2-98 to 2-125.
Class 21: Emotions in Negotiation.
- Getting to Yes, pp. 29-32 (Emotion); 48-50 (review Basic Human Needs); 157-161 (review Q4)
- Mediation Representation, pp. 84-85 (managing emotions).
- Module 2 Supplemental Materials, pp. 2-126 to 2-145.
Planned Activities: Discussion of the role of emotions in conflicts and negotiations; skills in managing emotions.
Class 22: Negotiation Wrap-Up.
- Getting to Yes, pp. 129-143 (review taming the hard bargainer).
- Module 2 Supplemental Materials, pp. 2-146 to 2-168.
Planned Activities: Lecture and discussion on the negotiator's dilemma, risks of bargaining styles, barriers to interest-based bargaining and practicing lawyer training in negotiation skills.
Class 23: Negotiation Wrap-Up (cont.).
- Mediation Representation, pp. 40-41 (what information to disclose?); 59-158 (review leading the way); 248-49 (disclosing information prudently); 249 (acknowledging harmful evidence or legal weakness); 250-263 (disclosing your bottom line).
- Module 2 Supplemental Materials, pp. 2-169 to 2-197.
Planned Activities: Lecture and discussion on information disclosure, choosing an approach, Axelrod's tit-for-tat strategy, leading the way (some examples), realistic optimism. Film clip: Hastings Intellectual Property Conflict, if time.
MODULE 3: Representing Parties in Mediation and Intro to Arbitration
Class 24: The How of Mediation: Ground Rules and Stages of Mediation.
- Mediation Representation, pp.74-82 (stages of mediation).
- Module 3 Supplemental Materials, pp. 3-1 to 3-23.
- Dispute Resolution Spectrum
- Definitions of Mediation
- Paula M. Young, The “What” of Mediation: When is Mediation the Right Process Choice? (2007).
- CPR Survey of 126 Foremost United States Attorneys (2007)
- Virginia Mediation Statistics (2004-05)
- Core Values of Mediation
- Stages of Mediation Process
- Sample Mediation Ground Rules
- Red Devil Dog Lease Mediation Role Play
- Process Analysis Questions
Planned Activities: Lecture on ground rules and stages of mediation; video demonstration of mediation in Red Devil Dog dispute; de-brief video.
Class 25: The Who of Mediation: Mediator Approaches and Orientations.
- Mediation Representation, skim pp. 67-69 (review definition of mediation) & 129-146 (mediators and their approaches and selecting a mediator).
- Module 3 Supplemental Materials, pp. 3-24 to 3-49.
- Paula M. Young, The Who of Mediation – Part II: Wisely Choosing a Mediator (2006).
- Gender Statistics on Neutrals
- Leonard Riskin, Replacing the Mediator Orientation Grids, Again: Proposing a “New New Grid System,” 23 Alternatives 127 (2005).
- Styles of Mediation
- Strategies and Techniques of Mediator in Various Orientations
- What Mediator Questions May Reveal About his/her Style
- Evaluation in Mediation in Virginia
Planned Activities: Mediation songs; lecture on old and new Riskin grids.
Class 26: The How of Mediation: Techniques of Mediators – Reframing.
- Mediation Representation, pp. 85-86 (framing and reframing).
- Getting to Yes, p. 36 (speak about yourself, not about them).
- Module 3 Supplemental Materials, pp. 3-50 to 3-54.
- Framing & Reframing
- Techniques of Reframing
- Reframing Exercises
- Reframing the Conflict Script
Planned Activities:Lecture on reframing; Buzz Group reframing exercises. Video clip of The Office showing mediation gone bad.
Pick-up assignments and facts for negotiation simulation for Class 27.
Class 27: Capstone Facilitated Negotiation.
- Lawyers: Mediation Representation, pp. 14 n. 4 (Schneider study); 31 (review key features of problem solving negotiators); 51-56 (stages of problem-solving negotiation); 182-217 (preparing for mediation); 241- 47 (appearing in the mediation); 265 (wrap-up).
- Clients: Mediation Representation, pp. 229-239 (preparing your client for mediation); 241-47 (appearing in the mediation); 265 (wrap-up).
- Mediators: Mediation Representation, pp. 74-82 (stages of mediation process); 84-93 (techniques of mediators); 129-152 (review selecting mediator).
- Module 3 Supplemental Materials, pp. 3-55 to 3-59.
- Jones v. Rogers: Instructions for Class 27 Exercise
- Jones v. Rogers: Facts for all Participants
- Sec. 102 Leave requirements, Sexual Harassment Summary
Class 28: Arbitration: Some Frequent Uses of Arbitration.
- Mediation Representation, pp. 275-302 (review breaking impasse with alternatives to mediation); Appendices J (final-offer arbitration rules).
- Module 3 Supplemental Materials, pp. 3-45 to 3-78.
- Dispute Resolution Spectrum
- Binding Arbitration Clause from a Consumer Contract
- Key Elements of Arbitration
- Three Ways Arbitration Agreements can Arise
- Some Key Supreme Court Cases
- The Arbitrator's Handbook: Chapter One, pp. 1-15.
- Prevalence of Arbitration Clauses, by Industry, from Linda J. Demaine & Deborah R. Hensler, “Volunteering” to Arbitrate Through Predispute Arbitration Clauses: The Average Consumer's Experience, 67 Law & Contemp. Prob. 55, 62-64 (2004).
- Feingold Says Report Shows Need to Limit Mandatory Arbitration, adrworld.com ( Aug. 17, 2008 ).
- The Senate Table Roleplay
Planned Activity: Senate Table exercise.
I will make the final examlette cartoon and essays available the last day of class. See Class Key for more information.
Copyright 2008 Paula M. Young. 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.