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Lessons From Teaching Students To Negotiate Like A Lawyer, John Lande
Lessons From Teaching Students To Negotiate Like A Lawyer, John Lande
John Lande
The legal education system is in a major crisis now, in part because law schools do not prepare students adequately to practice law. Law schools should do a better job of teaching negotiation, in particular, because it is a significant part of the work of virtually every practicing lawyer. This includes lawyers who handle civil and criminal matters and lawyers who do litigation as well as those who do transactional work. Negotiation is especially important because most litigated cases are settled and virtually all unstandardized transactions are negotiated. Most law school negotiation courses rely primarily or exclusively on simulations in …
Teaching Students To Negotiate Like A Lawyer, John Lande
Teaching Students To Negotiate Like A Lawyer, John Lande
John Lande
Teaching students to negotiate effectively is central to their thinking, acting, and being like good lawyers. Virtually all lawyers spend much of their time negotiating, whether they deal with disputes or transactions. So law school negotiation courses should provide the most realistic possible portrayal of legal negotiation. This essay is intended to help instructors plan and teach negotiation courses, recognizing that every course should be tailored to fit the interests, capabilities, resources, and constraints of the instructors and students. This essay argues that many lawyers engage in “ordinary legal negotiation” (OLN), which is distinct from “romantic” theories of positional and …
Getting Good Results For Clients By Building Good Working Relationships With "Opposing Counsel", John Lande
Getting Good Results For Clients By Building Good Working Relationships With "Opposing Counsel", John Lande
John Lande
Lawyers’ relationships with their “opposing counsel” make a big difference in how well they handle their cases. “Opposing counsel” often do oppose each other, sometimes quite vigorously, though they also regularly cooperate with each other. In the normal course of litigation, lawyers need to cooperate on many procedural matters. In some cases, they also cooperate to achieve their respective clients’ substantive interests. If the lawyers have a bad relationship, the case is likely to be miserable for everyone involved. If they have a good relationship, they are more likely to agree on procedural matters, exchange information informally, take reasonable negotiation …
The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande
The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande
John Lande
This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate. The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, …
Principles For Policymaking About Collaborative Law And Other Adr Processes, John Lande
Principles For Policymaking About Collaborative Law And Other Adr Processes, John Lande
John Lande
This Article articulates a set of principles for policymaking about “alternative dispute resolution” (ADR) to promote values of process pluralism, choice in dispute resolution processes, and sound decisionmaking. It argues that policymakers should use a dispute system design (DSD) framework in analyzing policy options. DSD involves systematically managing a series of disputes rather than handling individual disputes on an ad hoc basis. It generally includes assessing the needs of disputants and other stakeholders, planning to address those needs, providing necessary training and education for disputants and dispute resolution professionals, implementing the system, evaluating it, and making periodic modifications as needed. …
Using Dispute System Design Methods To Promote Good-Faith Participation In Court-Connected Mediation Programs, John Lande
John Lande
This Article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive. This Article proposes using dispute system design principles to develop policies satisfying the interests of stakeholders in court-connected mediation programs. After outlining interests of key stakeholder groups including litigants, attorneys, courts, and mediators, the Article describes specific policies that could satisfy their interests. …