Dispute Resolution and Arbitration Commons^™

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 Coronavirus Crisis Provides An Opportunity To Adopt Better Systems For Licensing Lawyers Than The Bar Exam, John Lande

Faculty Blogs

This post discusses an ABA Journal article entitled, Bar Exam Does Little to Ensure Attorney Competence, Say Lawyers in Diploma Privilege State. It quotes a former Wisconsin State Bar president saying that “whether [Wisconsin law school graduates] passed a bar exam … has no bearing on their lawyering abilities or character” or ensures competency. They are “swords of Damocles” hanging over schools’ and students’ heads. They privilege some doctrinal courses and discourage students from taking practice-oriented courses because those courses will not help them pass the bar exam. Bar exams entrench a pedagogy based on memorization of a lot …

The Next New Normals – In General, John Lande

Faculty Blogs

The covid pandemic was a shock wave that reverberated for several years, and we still are feeling the effects. During the crisis period, we developed routines of sheltering in place, physical distancing, communicating electronically, and working from home, among other things. This post speculated about what that new normal might be like in many domains of life after the pandemic ends. It referred to this as the “normal new normal” (NNN) in contrast to the “crisis new normal” (CNN) for the duration of the crisis. It speculated that routines developed during the CNN period may have long-lasting effects during the …

Dispute Prevention And Early Dispute Resolution Framework, John Lande

Faculty Blogs

This post explains how lawyers can help clients use dispute prevention and early dispute resolution procedures, and it provides a general framework including dispute prevention.

Early Dispute Resolution Processes, John Lande

Faculty Blogs

This post describes planned early dispute resolution, lawyering with planned early negotiation, pre-suit mediation, and planned early two-stage and multi-stage mediation.

Lira @ Cpr, John Lande

Faculty Blogs

This post summarizes presentations, data collected, and discussion in a program of the International Institute for Conflict Prevention and Resolution (CPR). The authors of the LIRA book conducted a survey of the attendees, and the post presents results of the survey. It provides nuanced discussions about how practitioners calculate BATNA values and bottom lines.

Moving Us Courts Online, John Lande

Faculty Blogs

This post provides a summary compiled by Paul Embley of the National Center for State Courts about

The Law Can Be Dangerous To Lawyers’ Mental Health, John Lande

Faculty Blogs

The legal system sometimes provides important benefits such as helping people solve difficult problems, making institutions function properly, and promoting justice. But the process needed to achieve these goals often is extremely stressful for litigants. Not only do parties suffer stress, but also do lawyers, law students, and law professors. So we all need to take care of ourselves and others.

How To Calculate And Use Batnas And Bottom Lines With Lira, John Lande

Faculty Blogs

This blog post provides an overview of the book, Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions, which I co-authored with Michaela Keet and Heather Heavin. The book describes how practitioners can (1) avoid common decision-making errors in litigation, (2) anticipate likely court outcomes, (3) communicate with clients about what’s most important to them, (4) help them make better decisions, (5) negotiate and mediate more effectively, and (6) learn about technological tools to help make decisions in litigation.

Instead of focusing only on the value of the best alternative to a negotiated agreement (BATNA), the …

Child Protection Mediation Model Mediator Competencies, Kelly Browe Olson Co-Editor

Law Faculty Scholarship

The inspiration to develop “Child Protection Mediation Model Mediator Competencies” arose from the work completed on “The Guidelines for Child Protection Mediation,” referred to in this document as, “The Guidelines.” “The Guidelines” were developed by a diverse group of experts in the field of child protection mediation (CPM) who are members of the Child Welfare Collaborative Decision-Making Network (CWCDMN) convened under the auspices of the Association of Family and Conciliation Courts (AFCC). “The Guidelines” have been adopted by the AFCC and endorsed by the National Council of Juvenile and Family Court Judges and the Association for Conflict Resolution.

These “Child …

Understanding Actual Dr Practice And Communicating Clearly About It, John M. Lande

Faculty Blogs

This post recommends we develop a common language of dispute resolution and increasingly use qualitative research methods.

Helping People Make Hard Decisions – And Making Them Ourselves, John Lande

Faculty Blogs

This post discusses surgeon Atul Gawande’s wonderful book, Being Mortal: Medicine and What Matters in the End, which critiques the way that the medical profession helps elderly patients make decisions. The post notes similarities with lawyers’ interactions with clients to help them make decisions in legal cases. It argues that Dr. Gawande’s prescriptions for medical practice also are relevant to legal practice. Lawyers generally should do a better job of listening to their clients, providing reasonably clear and accurate information about potential risks and benefits, helping them make hard decisions, and respecting their autonomy.

Planning For Good Quality Decision-Making In Mediation Using Two-Stage Mediation, John Lande

Faculty Blogs

This post describes risks of unplanned one-session mediations, planning for two-stage mediation, and benefits and risks of two-stage mediation.

Michael Buenger’S Great Keynote Address At The Aba Court Adr Conference, John Lande

Faculty Blogs

This post discusses the keynote address at the ABA Court ADR Conference, delivered by Michael Buenger, the executive vice-president and chief operating officer of the National Center for State Courts. His talk, Rethinking the Delivery of Justice in a Self-Service Society, focused on the changes needed to deal with social and technological changes in the present and future. He described the reality that the courts and “alternative” dispute resolution are becoming increasingly integrated, and he argued that we need to plan better so that this combined system can better serve the public.

Impressive Report On Worldwide Dispute System Needs And Design, John Lande

Faculty Blogs

This post highlights a report of the Hague Institute for Innovation of Law, Understanding Justice Needs: The Elephant in the Courtroom. It shows how legal service providers and courts could embrace user-centered innovation and delivery of fair solutions.

The New Singapore Mediation Convention: The Process And Key Choices, Harold Abramson

Scholarly Works

No abstract provided.

How Can Practitioners Help Clients Assess Their Interests And Risks In Litigation?, John Lande

Faculty Blogs

This post summarizes the discussion at a Quinnipiac-Yale Dispute Resolution Workshop. It highlights some practical ideas that the audience suggested about clients’ interests, timing of discovery and mediation, possible trial outcomes, legal fees, consequences of litigation, and decision fatigue in “marathon mediations.”

Reality-Testing Questions For Real Life And Simulations – And Ideas For Stone Soup Assignments, John Lande

Faculty Blogs

Although litigants and their lawyers may generally recognize that litigants will incur some intangible costs, they often do not consider the numerous intangible ways that litigants can be harmed and do not carefully assess these costs when making litigation decisions. Sometimes litigants’ intangible costs are much more important to them than the tangible costs. This post provides detailed descriptions of some of these costs, and includes questions that lawyers and mediators should ask clients to identify and value intangible costs.

What Do Litigants Really Want?, John M. Lande

Faculty Blogs

This post discusses Donna Shestowsky’s article, Inside the Mind of the Client: An Analysis of Litigants’ Decision Criteria for Choosing Procedures. Her study found that the decision-making factor that subjects most often cited was their lawyers’ advice. Donna argues, “Given the extent to which litigants are predisposed to following their lawyers’ advice about which procedures to use, lawyers should attempt to understand their clients’ interests, values, and objectives before sharing their personal evaluations of procedures to avoid imposing their own views.”

Keet And Heavin On Why Litigation Interest And Risk Assessment Is So Darn Important For Lawyers And Mediators – And How You Can Make Stone Soup With It, John Lande

Faculty Blogs

This post provides links to law review articles by Michaela Keet and Heather Heavin that provide the foundation for the LIRA book.

The New Handshake: Using Odr To Create Value For Consumers And Businesses, John Lande

Faculty Blogs

This post discusses issues related to the ABA book, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, by Amy Schmitz and Colin Rule. The book is designed to help build consumer protection that will benefit both consumers and merchants. It explains problems with the status quo, suggesting how ODR can improve handling of consumer problems and identifying challenges in implementing ODR systems.

Confusing Dispute Resolution Jargon, John M. Lande

Faculty Blogs

Decision trees enable people to assign probabilities to various contingencies and produce expected values for uncertain events.

Mosten And Scully’S New Book On Unbundled Legal Services, John M. Lande

Faculty Blogs

This post discusses Forrest (Woody) Mosten and Elizabeth Potter Scully’s book, Unbundled Legal Services: A Family Lawyer’s Guide. Unbundling involves providing specified services to legal clients rather than “full service” representation. Unbundling is particularly helpful in family matters because parties generally understand the issues and may represent themselves well if they have some legal help. Many family courts are overwhelmed with large numbers of cases involving self-represented litigants, so providing unbundled legal services can make a significant contribution to the legal system. In virtually all types of cases, some people have the interests in unbundling, not just family matters.

Takeaways From New Hampshire Mediation Training, John M. Lande

Faculty Blogs

This post highlights some key findings from survey data and focus-group-like comments from court mediation training for the training participants as well as readers of this blog.

Stone Soup: Learning How People Actually Prepare For Negotiation And Mediation, John Lande

Faculty Blogs

This post suggests questions in Stone Soup interviews that students can ask lawyers and mediators about how they prepare for negotiation and mediation.

Letter To Kelly, John Lande

Faculty Blogs

This is a letter I wrote to someone who was about to start law school. I advised keeping focused on their goals and how best to achieve them. I cautioned about portrayals of lawyers on TV and in the movies. I warned about the “hidden curriculum” which creates misimpressions by focusing on appellate cases. I encouraged them to remember what it is like to be a “normal” person, a perspective they may forget after being initiated in the legal tribe. I advised trying to see the world through others’ eyes.

Lessons From The Aba’S Excellent Report On Mediator Techniques, John M. Lande

Faculty Blogs

This post highlights findings from the report of the ABA Section of Dispute Resolution Task Force on Research on Mediator Techniques. The report identified 47 studies from the past four decades that analyzed effects of particular mediator actions on certain mediation outcomes. The Task Force found that none of the categories of mediator actions has clear, uniform effects across the studies. In general, the studies found that some generally uncontroversial actions – such as eliciting suggestions, focusing on emotions and relationships, building trust, expressing empathy, praising disputants, and setting agendas – may or may not produce positive effects. It found …

Mediator Or Judge?: California’S Mandatory Mediation Statute In Child Custody Disputes, Sofya Perelshteyn

Pepperdine Dispute Resolution Law Journal

This article will argue that mandatory mediation offers important benefits, including lightening the overloaded court system and capitalizing on the flexibility and personalization of mediation in certain kinds of disputes. This article will also discuss how allowing the mediator to provide recommendations to the judge after unsuccessful negotiations can shatter the basic tenets of mediation and create an altogether different process for the dispute. Furthermore, it will argue that California’s mandatory mediation statute creates a system more akin to litigation, since the parties are presenting their case to a mediator who wears the hat of both mediator and judge. In …

Kiser’S Soft Skills For The Effective Lawyer, John Lande

Faculty Blogs

This post describes Randall Kiser’s book, Soft Skills for the Effective Lawyer. He defines soft skills as including “intrapersonal and interpersonal competencies such as practical problem solving, stress management, self-confidence, initiative, optimism, interpersonal communication, the ability to convey empathy to another, the ability to see a situation from another’s perspective, teamwork, collaboration, client relations, business development, and the like.” He presents research showing that legal clients especially value these skills in lawyers.