Law Commons^™

Merging Mediation Models – And Other Lessons, John Lande

Faculty Blogs

This post offers suggestions for teaching about mediation practice without focusing primarily on the problematic traditional mediation theories described in Section 3.C. It suggests that faculty (1) help students understand dynamics related to assessments of court outcomes, (2) teach students to strategically combine elements from the traditional models, (3) teach them how to manage the counteroffer process, (4) include lawyer-client relationships in simulations, and (5) use longer simulations including preparation for mediation sessions.

Lira In Criminal Cases, John Lande

Faculty Blogs

This post describes how the LIRA framework can be adapted in criminal cases and used in plea bargaining. It suggests how to calculate and use bottom lines in these cases.

Concepts That Can Help Practitioners Help Parties Make Decisions In Disputes, John Lande

Faculty Blogs

A fundamental purpose of dispute resolution practitioners is to help people make decisions about processes, procedures, and issues in managing their conflicts. This post lists concepts to help people make decisions about the choice of dispute resolution process, specific procedures in a given process, and resolving issues in dispute. In resolving disputes, people should consider the value of plausible options and the future tangible costs and intangible costs and interests of continuing the dispute. The post lists specific cognitions, possible actions, and practitioner interventions promoting good decision-making.

Evolution Of A Field: Personal Histories In Conflict Resolution, Howard Gadlin, Nancy A. Welsh

DRI Press

This book features 23 chapters written by founders, thinkers, inventors, reformers, disrupters and transformers in the field of conflict resolution, thus allowing readers to explore the field’s real, on-the-ground reasons for being and evolving. The contributors include mediators, facilitators, arbitrators, ombuds, academics, system designers, entrepreneurs, leaders of conflict resolution organizations, researchers, advocates for conflict resolution, and critics of conflict resolution. They share their personal and professional stories as well as the values, aspirations and characteristics of the field that inspired them to become involved in conflict resolution, develop their careers, and both influence and wrestle with the field’s evolution.

Contributors …

Mediating Consumer Financial Disputes: Financial Industry Disputes Resolution Centre's Unique House Style, Eunice Chua, Beverly Wee

Research Collection Yong Pung How School Of Law

The Financial Industry Disputes Resolution Centre (“FIDReC”) was established in August 2005 with the purpose of providing a low-cost avenue for consumers to resolve their disputes with financial institutions. This article seeks to outline the role of FIDReC and its processes and, at the same time, seeks to define the house style of mediation that has served FIDReC well over the years. This article also highlights some of the different techniques adopted by FIDReC mediators in the course of facilitating the mediation.

Problems With Teaching “Integrative” Negotiation, John Lande

Faculty Blogs

This post responds to Debra Berman’s piece, Is Our Over-Emphasis on Integrative Negotiation Pedagogy Falling Short of Reality? My answer is “yes.” Much – perhaps most – negotiation and mediation of civil cases these days in the US involves a counteroffer process where lawyers focus almost exclusively on allocating money based on a zero-sum assumption. So if our courses focus too much on interests-and-options processes, students get a misimpression about the frequency of what happens in the real world. If we don’t prepare them to operate effectively in practice, they will be in for a rude surprise after they graduate. …

A Message For Law Students To Prepare Themselves For Legal Practice, John Lande

Faculty Blogs

This post includes suggestions to help plan self-directed learning to supplement what students learn in law school. It recommends that students (1) appreciate the values and limitations of the law, (2) recognize the “hidden curriculum” in law school, (3) understand that “thinking like a lawyer” really is about helping clients achieve their goals, (4) develop a strategic plan for their education, (5) compile a portfolio, (6) take clinical, externship, and practice courses, (7) interview practitioners, and (8) join the ABA and other bar and professional associations.

You Really Should Know About Kris Franklin, John Lande

Faculty Blogs

This post profiles New York Law School Professor Kris Franklin. She teaches a negotiating, counseling, and interviewing course, which she says really should be called “Client Representation and Case Handling.” Her course on family law practice teaches all the family law doctrine covered in traditional family law courses but she does it exclusively using simulations. In contrast to my suggestion for renaming law school as “negotiation school,” she suggests calling it “legal problem-solving school,” which I think is even better.

Study Finds That Law Schools Fail To Prepare Students To Work With Clients And Negotiate, John Lande

Faculty Blogs

This post provides excerpts from the Building a Better Bar study about new law school graduates’ unmet instructional needs. The study found that new lawyers were “woefully unprepared” to work with clients. They had difficulty (1) communicating with clients, (2) managing expectations, (3) breaking bad news, (4) coping with difficult clients, (5) negotiating with counterparts and clients, and (5) understanding the “big picture” of client matters.

Need For Clear Language Initiative To Un-Babel Our Models, John M. Lande

Faculty Blogs

Professional jargon is helpful in some fields because it promotes communication between professionals like brain surgeons and rocket scientists.

But jargon is extremely problematic for dispute resolution because it confuses and excludes laypeople and other stakeholders.

Jeff Trueman’S Study On Nightmares Of “Positional” Tactics In Mediation, John M. Lande

Faculty Blogs

This post reports on an excellent study about the challenges of lawyers, mediators, and insurance claims professionals in mediation. His findings are consistent with my observations about the emotional pains of positional negotiation. Many of the cases in his study involve insurance, which are supposedly “money-only cases” because the parties generally haven’t had a prior relationship and have no interest in a future relationship. But Jeff found that emotions and relationships actually can be very important in these cases – the professionals’ emotions and relationships with each other.

Donna Shestowsky’S Presentation On Litigants’ Views Of Court Adr Options, John M. Lande

Faculty Blogs

This post hightlights findings from Donna Shestowsky’s research finding that litigants seem to be unaware of ADR options, and that knowing about some of these options improves their opinions of the court itself. Surprisingly, having a lawyer did not make litigants more aware of ADR options, even when those options were offered by the court system.

Confessions And Redemption—And Politics—For An Un-Neutral Person Who Mediates, Marjorie Corman Aaron

Faculty Articles and Other Publications

Within ADR’s house, and now in our arbitration and mediation rooms, we mediators, court ADR administrators, process designers,and arbitrators can construct and conduct processes that reflect moral values our law makers seem to have abandoned.

Mediation: The New Normal?, Nadja Alexander

Research Collection Yong Pung How School Of Law

Imagine a tightrope walker, walking along a tightrope, holding a long, light rod. To help her balance, the performing artist continually moves the rod, changing the angle of the rod to maintain a constant – her balance in space. If she were to hold the rod in a fixed position, what would happen? She would fall off. In other words, the variation of the rod has the function of maintaining the deeper continuity which enables the artist to make it to the other end, alive. In this essay, the tightrope walker offers a metaphor for dispute resolution systems. In order …

Mediation, The Rule Of Law, And Dialogue, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this paper the author urges discussion on the legitimacy of mediation processes, a discussion that is not prevalent in legal scholarship. The author argues that mediation outcomes can be inconsistent with the rule of law given that the same case can have a different outcome depending on whether it is litigated or mediated. On the other hand, crucial and valuable aspects of mediation can result in a presumption of legitimacy. With the rule of law critique in mind, the author discusses how dialogue theory can be used to improve upon the mediation process.

The author begins by exploring the …

They Should Call It Negotiation School, Not Law School, John Lande

Faculty Blogs

Considering that lawyers spend much more time negotiating than going to trial, I offered suggestions for fundamentally reorganizing law school curricula and policies. This somewhat mischievous thought experiment includes ideas that are too radical for any law school to consider given the deeply entrenched institutionalization of legal education. But it is useful to ponder how law schools generally do a poor job of preparing students for the reality of practice and how schools might reform their curricula to do a better job.

Transactional Interest And Risk Assessment, John Lande

Faculty Blogs

This post describes how the LIRA can be adapted for transactional negotiations.

Reflections On Untethered Philosophy, Settlements, And Nondisclosure Agreements, Marjorie Corman Aaron

Faculty Articles and Other Publications

The potentially harmful consequences of nondisclosure agreements in private settlements are troubling. They are a legal system problem, however, for which ADR is not to blame. Unless NDAs were prohibited for all legal claims, prohibiting them in mediated settlements would create greater incentives for pre-litigation direct settlements. The result would be less, not more, public awareness of (alleged) misdeeds.

What’S A Bottom Line?, John M. Lande

Faculty Blogs

During the life cycle of a case, lawyers start with vague and tentative bottom lines, and they develop more precise and confident bottom lines as the case progresses. People typically are not candid with others – and sometimes even with themselves – about their real walkaway point (or “trip wire”) for ending negotiations. Indeed, “bottom line” claims are standard negotiation gambits using wildly inflated numbers that experienced negotiators and mediators routinely assume to be false.

Batna May Be Less Important Than You Think – And Teach, John M. Lande

Faculty Blogs

When bargaining in the shadow of the law, the expected court outcome (aka BATNA value) is only part of the more important consideration for negotiators – their bottom lines.

What Users Say About Technology In Mediation: 2020 Sidra Survey, Part 3, Nadja Alexander, Allison Goh

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the use and appreciation of technology in mediation among client users is analysed.

Lira Videos, John Lande

Faculty Blogs

This post collects lots of videos of presentations I gave about LIRA.

Batnas And The Emotional Pains From “Positional Negotiation", John M. Lande

Faculty Blogs

This post describes the role of BATNAs in the “positional negotiation” game, pains that it causes people in many roles, and some remedies to avoid and reduce these pains. In this “game,” each side seeks to maximize its outcome by starting with extreme positions and then making a series of counteroffers. Each side concocts stories justifying their positions but everyone knows that these stories are exaggerations at best and fibs at worst. If you gave truth serum to the lawyers, they would admit that they don’t really believe their own arguments.

But they do it because “everybody does it.” It’s …

The Singapore Convention On Mediation: Supplying The Missing Piece Of The Puzzle For Dispute Resolution, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

In late 2018, the United Nations General Assembly passed a resolution to adopt the UN Convention on International Settlement Agreements Resulting from Mediation and to make corresponding amendments to the Model Law on International Commercial Conciliation. The convention was named the Singapore Convention on Mediation (“Singapore Convention”) when it was signed by 46 countries on 7 August 2019, and will come into force on 12 September 2020. The Singapore Convention is meant to achieve for mediation what the New York Convention has done for international arbitration. Its future success is highly dependent on the sound application of its provisions by …

What Users Say About International Mediators And Mediation Institutions: Part 2, Nadja Alexander, Allison Goh

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the key factors that influence users' choice of mediation institution and choice of the mediator are explored.

Batna’S Got To Go — And Here’S A Better Idea, John M. Lande

Faculty Blogs

BATNA et al. are examples of popular terms that are widely misunderstood. In particular, while BATNAs really are courses of action (like going to trial or making a deal with a different party), people often confuse them with the expected values of those courses of action (like the trial outcome or profit from a deal).

Mediate.Com Publishes “Seven Keys To Unlock Mediation’S Golden Age”, John Lande

Faculty Blogs

Mediate.com published a series entitled Seven Keys to Unlock Mediation’s Golden Age. The objective is to encourage discussion among stakeholders about navigating mediation’s best future. The seven keys are: Leadership, Data, Education, Profession, Technology, Government and Usage. Descriptions of each “key” has two to four short articles.

Resources For Teaching About Batna, Bottom Lines, And Lira, John Lande

Faculty Blogs

Practically every negotiation, mediation, and ADR survey course teaches students that they should figure out their BATNA when negotiating or mediating. This is much easier said than done. This post provides lots of resources to help faculty teach students about BATNAs and – more importantly – about bottom lines. For additional publications about these topics, see Sections 3.A and 5.

Decision-Making As An Essential Element Of Our Field, John M. Lande

Faculty Blogs

This post suggests that we think of our work as focused on process design, strategy, and decision-making in managing conflict. Our field seeks to help parties solve problems when they lack good (or sometimes any) practical dispute resolution options. This post describes such situations and identifies strategies to increase and improve parties’ decision-making.

The Evolving Concept Of Access To Justice In Singapore’S Mediation Movement, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

This article examines the key societal developments underpinning the growth of mediation in Singapore with the view to analysing the evolving conceptualisation of justice within mediation. The introduction of mediation corresponded with a shift from adversarial justice to an indigenous form of conciliatory justice, in which a respected mediator played an advisor role to the disputants and was trusted to ensure the fairness of the process. However, this trajectory was tempered by the need to ensure that Singapore mediation practice conformed with international practices concerning the protection of parties’ autonomy. The ambivalence concerning the mediator’s role has resulted in uncertainty …