Law Commons^™

Zooming In On Neutrals’ Implicit ‘Isms, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Video conferencing, extolled for its economic and efficiency benefits, has now become an accepted option in the “new normal” of dispute resolution practice. Consequently, our professional discussions about video conferencing have advanced from sharing the mechanics of “how to” conduct an arbitration or mediation on Zoom to more nuanced explorations about the appropriate use of video conferencing. This column contributes to this exploration by questioning how dispute resolution processes conducted via video conferencing might trigger the implicit biases of arbitrators and mediators and compromise a neutral’s ethical obligation to be impartial. When a neutral conducts their dispute resolution processes …

Simulations Based On Actual Cases – Why Reinvent The Wheel?, John Lande

Faculty Blogs

This post describes Debra Berman’s use of materials from actual cases for simulations in her negotiation and mediation courses. She provides litigation documents, including the complaint, motions, and other documents such as discovery requests, disclosures, and scheduling orders as well as a short settlement memo that she drafts. She observed dramatic improvements in her students’ performance. They were excited to work with real cases and were more prepared.

Constructing Good Odr Systems, John Lande

Faculty Blogs

This post presents an article by Amy Schmitz and John Zeleznikow, Intelligent Legal Tech to Empower Self-Represented Litigants. It helps explain why ODR systems sometimes don’t fulfill parties’ needs. The article develops a typology of six functions that various ODR systems perform: case management, triaging, advisory, communication, decision support, and drafting. It includes a great appendix listing ODR systems and which of these functions they perform, noting that some systems perform multiple functions. It argues that artificial intelligence and data analytics have the potential to help self-represented litigants and others pursue remedies and justice.

Teaching Students To Think Like Practitioners, John Lande

Faculty Blogs

This post summarizes ideas from a presentation focused on how to teach students to think like a mediator. This post applies the same logic to thinking like an advocate in mediation or a negotiator. The techniques can be applied in courses teaching practice skills through simulations, externships, and clinical experiences. The post includes possible teaching assignments.

Dwight Golann On A Year Of Zoom Mediations, John Lande

Faculty Blogs

This post summarizes Dwight Golann’s article, “I Sometimes Catch Myself Looking Angry or Tired …” The Impact of Mediating by Zoom. He concludes, “Mediating by Zoom is a much more positive experience than people expected and will be a large part of the field in the future.”

Dilyara Nigmatullina’S New Article On Planned Early Dispute Resolution And Technology, John Lande

Faculty Blogs

This post summarizes Dilyara Nigmatullina’s article entitled, Planned Early Dispute Resolution [PEDR] Systems and Elements: Experiences and the Promise of Technology. It investigates actual experiences of companies using PEDR systems and discusses the effect that the companies’ shift to PEDR has on law firms. It concludes by exploring how PEDR systems can benefit from the use of technological tools and how the interaction between technology and dispute resolution can affect the future of the legal profession. PEDR is discussed in Section 8.

Anna Howard’S New Book Examines Why Businesses Don’T Use Mediation – And Other Issues, John Lande

Faculty Blogs

Anna Howard‘s book, EU Cross-Border Commercial Mediation: Listening to Disputants – Changing the Frame; Framing the Changes, provides valuable insights about business disputing. Her study is based on 21 semi-structured interviews of senior in-house counsel in multi-national companies operating in Europe. It shows that lawyers think about disputes from the outset of problems, not simply at the later stages of cases. The study pays particular attention to why businesses don’t use mediation, highlighting the impact of internal organizational dynamics.

New Edition Of Psychology For Lawyers, John Lande

Faculty Blogs

This post describes the second edition of Jennifer Robbennolt and Jean Sternlight’s book, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making. Based on the latest research, it provides insights about perception, memory, judgment, decision making, emotion, persuasion and influence, communication, and the psychology of justice. It applies these insights tasks to daily tasks of lawyering, including interviewing, negotiating, counseling, and conducting discovery.

Student Paper Topics, John Lande

Faculty Blogs

Students often have problems deciding what to write about for their course papers. This post collects blog posts with provocative ideas that students might elaborate or critique in their papers.

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.

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.

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.

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.

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 …

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.