Dispute Resolution and Arbitration Commons^™

Published Versions Of Tower Of Babel Symposium Articles, John M. Lande

Faculty Blogs

This post provides links to the articles in the Tower of Babel Symposium.

Dealing With Causes As Well As Symptoms Of Law Students’ And Lawyers’ Lack Of Well-Being, John Lande

Faculty Blogs

This post discusses the National Task Force on Lawyer Well-Being’s report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change. The report recommends that faculty “assess law school practices and offer faculty education on promoting well-being in the classroom.” It cites research suggesting that “potential culprits that undercut student well-being includ[e] hierarchical markers of worth such as comparative grading, mandatory curves, status-seeking placement practices, lack of clear and timely feedback, and teaching practices that are isolating and intimidating.” This post notes that legal practice is inherently stressful and recommends changing legal practice culture. Individual practitioners may reduce their …

Message For Students Interested In Adr, John Lande

Faculty Blogs

This post provides suggestions for things that law students interested in ADR might read and do.

A Guide For Family Mediators: Working With Self-Represented Litigants, Kelly Browe Olson, Andrea Clark

Law Faculty Scholarship

No abstract provided.

What Theory Do Practitioners Want?, John M. Lande

Faculty Blogs

There isn’t a single negotiation theory – it comes from many different sources. For example, one person said that labeling using conceptual frameworks, such as Roger Fisher’s and Daniel Shapiro’s five core concerns, can be useful in understanding and dealing with emotions. Others pointed to the value of procedural justice, human needs, and social value theories. Social value theory involves people’s orientations about resource allocation.

Drop Everything And Read Noam’S Masterpiece Right Now, John Lande

Faculty Blogs

This post describes Noam Ebner’s article, Negotiation is Changing. He argues that people’s everyday behaviors have changed in recent years, and that “people-as-negotiators, and therefore negotiation itself, have also undergone significant change.” He describes how people’s bodies are physiologically changing, how we are changing our behaviors, how we are being changed by our new behaviors, and how we are interacting in new ways. He illustrates his thesis by describing changes in behavioral, psychological, and emotional elements of negotiation including attention, communication, empathy, and

Moving Negotiation Theory From The Tower Of Babel Toward A World Of Mutual Understanding Summary, John M. Lande

Faculty Blogs

Our current negotiation theory needs improvement. As we develop better negotiation theory, we should start by appreciating the valuable work that has been done by our predecessors. Moving forward, we should acknowledge that scholars are subject to the same cognitive biases that we document in our work. For example, it is easy to fall prey to the status quo and confirmatory biases that keep us from developing better understandings of negotiation. Thus we should take conscious action to carefully consider how traditional ways of thinking distort our understandings and whether there are better ways to understand negotiation. This is particularly …

What Is Negotiation, Anyway?, John M. Lande

Faculty Blogs

This is a particularly useful article for the first class or two of a negotiation course, guaranteed to stimulate a spirited discussion.

Lainey Feingold’S Book On Structured Negotiation, John Lande

Faculty Blogs

This post discusses Lainey Feingold’s book, Structured Negotiation – A Winning Alternative to Lawsuits. Lainey is a disability rights lawyer who uses a process for successfully negotiating cases without filing lawsuits. The book is a nuts-and-bolts guide for using her process.

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

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

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

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

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

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

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

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.

Trending@Rwu Law: Professor Bruce Kogan's Post: Why Mediation?, Bruce Kogan

Law School Blogs

No abstract provided.

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

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

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

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

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

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

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

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

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

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.

The Smith Case: Is The Glass Half Full?, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Many in our ADR community have already chosen to side with one of the choruses of polarized voices that are either supportive of or critical of the recent judicial decision In re Cody W. Smith. In that decision, Chief United States Bankruptcy Judge Jeff Bohm disallowed the trustee’s appointment of a mediator, because, inter alia, the trustee didn’t first secure the approval of the presiding bankruptcy judge. A cursory read of Judge Bohm’s decision mistakenly leads us to believe that the case is just about a bankruptcy trustee’s obligation to follow section 327(a) of the Bankruptcy Code, …

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.