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Full-Text Articles in Dispute Resolution and Arbitration
Bad Decisions To Go To Trial, John Lande
Bad Decisions To Go To Trial, John Lande
Faculty Blogs
This post describes an extreme example of a very common pattern of over-confident litigation risk assessments. Target Corporation was hit with a $4.6 million verdict after rejecting a $12,000 demand on behalf of a child who was stuck with a hypodermic needle in a Target parking lot. Target had offered only $750.
Big New Study On Necessary Lawyering Skills, John Lande
Big New Study On Necessary Lawyering Skills, John Lande
Faculty Blogs
This post summarizes the “Foundations of Practice” survey of lawyers which identifies “foundations” that lawyers need soon after graduation. These include communication, emotional and interpersonal intelligence, passion, ambition, professionalism, and other qualities and talents. Almost all of the items on the list refer to personal qualities that law schools don’t emphasize in their curricula. By contrast, law schools focus on things that only small proportions of the lawyers think are necessary soon after graduation.
Negotiation Symposium Virtual Book Club, John M. Lande
Negotiation Symposium Virtual Book Club, John M. Lande
Faculty Blogs
As part of the Tower of Babel Symposium, speakers suggested publications providing useful insights about negotiation. The author conducted conversations with the speakers, which are collected in this post.
Where The “Puck” Is Going – And What Faculty Should Do To Help Students Get There, John Lande
Where The “Puck” Is Going – And What Faculty Should Do To Help Students Get There, John Lande
Faculty Blogs
This post summarizes presentations and discussion at a program of the ABA Section of Dispute Resolution’s annual Legal Educators’ Colloquium. The conversation addressed anticipated changes that might affect legal and dispute resolution practice, how practice might change as a result, and how these changes could affect people’s teaching.
Easy Assignment To Promote Law Students’ Apprenticeship Of Identity, John Lande
Easy Assignment To Promote Law Students’ Apprenticeship Of Identity, John Lande
Faculty Blogs
This post describes an assignment in which students were required to review several law firm websites and write a homepage for the kind of practice that they would like to be part of. The post includes the assignment, which faculty are welcome to use or adapt.
Pedr Is Important For Culture Change In Courts, John Lande
Pedr Is Important For Culture Change In Courts, John Lande
Faculty Blogs
This post highlights a report by the Institute for the Advancement of the American Legal System, Change the System, Change the Culture: Top 10 Cultural Shifts Needed to Create the Courts of Tomorrow. One of the recommended cultural shifts is “Dig Deep, Earlier: Lawyers need to develop a deep understanding of their case early in the process.”
What Makes Lawyers Happy? – And How Can You Help?, John Lande
What Makes Lawyers Happy? – And How Can You Help?, John Lande
Faculty Blogs
This post summarizes Lawrence Krieger and Kennon Sheldon’s impressive study, What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success. They write, “[T]he current data show that the psychological factors [related to subjective well-being] seen to erode during law school are the very factors most important for the well-being of lawyers. Conversely, the data reported here also indicate that the factors most emphasized in law schools – grades, honors, and potential career income, have nil to modest bearing on lawyer well-being.”
Tips For Lawyers Who Want To Get Good Results For Clients And Make Money, John M. Lande
Tips For Lawyers Who Want To Get Good Results For Clients And Make Money, John M. Lande
Faculty Blogs
This post suggests that lawyers do the following to help clients achieve their goals: Understand your clients’ interests. Pay attention to what’s really important in your cases, not just the law or winning. Recognize the importance of emotions – especially yours. Get to know your counterpart lawyer. Make a habit of preparing to resolve matters at the earliest appropriate time. Be prepared to negotiate more than you might expect. Get help from mediators when needed. Be prepared to advocate hard and smart.
Planning Is Critically Important For Early Dispute Resolution, John Lande
Planning Is Critically Important For Early Dispute Resolution, John Lande
Faculty Blogs
This post pushes back against a complaint by lawyers that early mediation is a waste of time. Attempts to settle cases early in litigation can be wasteful if the lawyers haven’t properly prepared and planned the process. Some people think that “early” means that lawyers should try to resolve the ultimate issues right after all the parties have appeared in litigation. This post uses the term “early” as a shorthand for “earliest appropriate time.” To be ready to settle at the earliest appropriate time, lawyers should promptly learn the parties’ interests and the critical facts, reasonably anticipate the likely decision …
Great Value Of Students Playing Clients In Multi-Stage Simulations, John Lande
Great Value Of Students Playing Clients In Multi-Stage Simulations, John Lande
Faculty Blogs
This post describes the great results when I used multi-stage simulations in negotiation and family law dispute resolution courses. To simulate real life, I developed several simulations that started from the first client interview. I included other stages, such as (1) negotiating retainer agreements, (2) identifying additional information needed, (3) getting to know counterpart lawyers, (4) researching and negotiating about the law, (5) negotiating dispute resolution clauses, (6) preparing for negotiation with clients and counterpart lawyers, and (7) negotiating the ultimate issues. Students playing lawyers got especially valuable experiences because the students playing clients identified so strongly with their roles.
Everything I Know About Dispute Resolution Is Wrong – Especially What You Say About It, John Lande
Everything I Know About Dispute Resolution Is Wrong – Especially What You Say About It, John Lande
Faculty Blogs
This post describes an extremely provocative discussion in a session at the ABA Section of Dispute Resolution conference.
Illusions Of Competence, John Lande
Illusions Of Competence, John Lande
Faculty Blogs
This post riffs on BARBRI’s “State of the Legal Field Survey” reporting that “71 percent of 3L law students believe they possess sufficient practice skills. In contrast, only 23 percent of practicing attorneys who work at companies that hire recent law school graduates believe recent law school graduates possess sufficient practice skills.” Making it personal, I asked readers if they would be confident that a recent law graduate would do a good job in handling a garden-variety legal case of theirs. I wouldn’t.
Minimizing Unnecessary Violence In Litigation And Other Dispute Resolution Processes, John Lande
Minimizing Unnecessary Violence In Litigation And Other Dispute Resolution Processes, John Lande
Faculty Blogs
This post responds to a response to my post, Litigation as Violence. My fellow-blogger Jen Reynolds argued, “We in ADR should not undervalue, when analyzing the dispute resolution landscape, the regulatory function of litigation in the United States.” I agreed with Jen’s statement, noting that we sometimes too-glibly criticize the legal system without acknowledging the benefits it produces, which we often take for granted. This post provides a balanced assessment of litigation from Professor Cardi as well as my writing.
Litigation As Violence, John Lande
Litigation As Violence, John Lande
Faculty Blogs
The article describes the “litigation response syndrome” – adverse consequences merely from being engaged in litigation. Sometimes lawyers and law professors treat litigation as if was just a game, insensitive to the pain it causes to litigants and others swept up in it, possibly including the lawyers themselves. Cardi argues that before proceeding in litigation, lawyers and litigants should be prepared for the toll it may take.
We Need A Better Consensus About Negotiation Theory, John M. Lande
We Need A Better Consensus About Negotiation Theory, John M. Lande
Faculty Blogs
This post advocates redefining the scope of negotiation to include the interactions leading up to the final negotiation. Legal matters often involve a stream of negotiations, not merely a single event at the end of a process. It also recommends focusing on the process of reaching agreement, not only the process of resolving disputes, including processes of reaching agreement where there is little or no dispute. It also suggests disaggregating traditional models and analyzing key variables separately instead of thinking in terms of two discrete, coherent models.
Problems With The System Of Negotiation Models, Part 2, John M. Lande
Problems With The System Of Negotiation Models, Part 2, John M. Lande
Faculty Blogs
This part describes two actual negotiations to illustrate problems with the traditional system of two negotiation models. These cases don’t fit neatly into either model.
Problems With The System Of Negotiation Models, Part 1, John M. Lande
Problems With The System Of Negotiation Models, Part 1, John M. Lande
Faculty Blogs
The current framework relies primarily on two models – positional and interest-based negotiation. This is not only a foundation of negotiation theory, but it is key to theory of lawyering, mediation, collaborative law, dispute system design and other areas of dispute resolution, other disciplines, as well as popular culture.
What Is (A)Dr About?, John M. Lande
What Is (A)Dr About?, John M. Lande
Faculty Blogs
Description of the prompt what is ADR about? Part of the definitional problem is that we usually focus on small slices of a case, typically at the end, rather than looking at cases holistically. But that’s not how parties and lawyers typically experience them. Lawyers live with cases from their first contact with their clients about the problems. Parties start to deal with their conflicts even earlier than that.
What Is Negotiation?, Part 2, John M. Lande
What Is Negotiation?, Part 2, John M. Lande
Faculty Blogs
To get a good understanding of final settlement events, it usually helps to also understand the interactions leading up them.
“Labels Suck”, John Lande
“Labels Suck”, John Lande
Faculty Blogs
Using Andrea Schneider’s pithy observation as a jumping off point, I noted confusion about the traditional terminology about lawyer- and client-centered counseling, positional interest-based negotiation, and evaluative and facilitative mediation. Many of us are pretty sloppy in our use of these terms. For example, people often think of client-centered counseling, interest-based negotiation, and facilitative mediation basically as being nice and the opposite approaches as being tough (if not naughty). So in my classes, I briefly defined the terms so that students recognize them and I described the problems with them. Then I warned them not to use the terms and …
What Is Negotiation?, Part 1, John M. Lande
What Is Negotiation?, Part 1, John M. Lande
Faculty Blogs
Conventional conceptions of negotiation often involve various elements that do not necessarily occur in the process of reaching agreement.