What I'm Reading
Being retired from teaching and faculty meetings leaves time to do other things. Here are the books I've been enjoying.
Teaching Students to Think Like Practitioners
People often say that dispute resolution processes aren’t “one size fits all.”
The Role of Law in Legal Disputes
Law school teaches students that law is a seamless web of rules emanating from authorities like statutes and cases which they must memorize and finely parse in hypothetical cases.
A Tale of Two Negotiators
When President Trump was in office, I wrote a series of posts about his negotiation habits based on contemporary news accounts.
Charting a Middle Course for Court-Connected Mediation
I wrote this article growing out of the lively discussion in a program on fairness.
Reconciling Allegedly Alternative Mediation Models by Using DIY Models
I was puzzled to get an email from a mediator thanking me for my recent post, which advocated using a unified conceptual framework of unbundled mediation interventions.
Proposal for Standard Explanation in Mediation
Since writing my recent short article, Courts Should Make Mediations Good Samaritans Not Frankensteins, I have been thinking about how to maximize the substantial benefits of court-connected mediation while minimizing the risks of coercion.
Courts Should Make Mediation Good Samaritans not Frankensteins
Using a recent California appellate decision as a jumping off point, it identifies problems with mandatory mediation and recommends that courts use good dispute system design procedures to reduce risks of creating Frankensteins – mediation that produces injustices.
We Should Replace Mediation Models with a Unified Conceptual Framework
A quarter century ago, Professor Leonard Riskin published an article describing a grid of mediator orientations including a facilitative-evaluative dimension.
Paul M. Lurie on Guided Mediation
Guided Mediation is a collection of best practices and tools in actual use that increase mediation efficiency, get earlier settlements, reduce legal and consultants’ fees, and minimize business disruption.
ADR’S Place in Navigating a Polarized Era
Analyzing ADR can be like wrestling an octopus.
Lawyers are from Mars, Clients are from Venus– and Mediators Can Help Communicate in Space
Litigation often is extremely stressful for clients, and the process aggravates feelings of loss and grief, which interfere with their ability to negotiate effectively and reach agreements.
Ideas for Teaching Mediation and Negotiation
This article is prompted by my conversation with a really good, experienced colleague who is revising his mediation course.
Concepts that Can Help Practitioners Help Parties Make Decisions in Disputes
My main premise is that our dispute resolution community fundamentally is about helping people make decisions about processes, procedures, and issues in managing their conflicts.
Arbitration Conversation No. 31: Prof. John Lande, University of Missouri School of Law
In this episode of the Arbitration Conversation Amy interviews John Lande, the Isidor Loeb Professor Emeritus and former director of the LLM Program in Dispute Resolution at the University of Missouri School of Law.
Need for Clear Language Initiative to un-Babel Our Models
I’ve said it before, and I’ll say it again. We use rotten language to describe our ideas and theories.
Cyberweek Next Week
The 22nd annual international ADR Cyberweek will run from November 1 to November 6, 2020.
Asynchronous Instruction in this Year of Living Dangerously
Probably every student and instructor has had difficult challenges this year accommodating to the routines needed because of the pandemic.
BATNAs and the Emotional Pains from “Positional Negotiation”
If you have problems with BATNA theory, you aren’t the only one.
BATNA’S Got to Go
In a recent DRLE listserv colloquy, I threatened to save for another day an extended rant about why we are so doggone attracted to using confusing jargon. That day has arrived.
Kristen Blankley: New Opportunities for Pro Bono in a Pandemic
COVID-19 has created additional need for legal services in many areas, including housing, consumer law, employment law, probate, family law, domestic violence advocacy, criminal law, among others.
The Coronavirus Crisis Provides an Opportunity to Adopt Better Systems for Licensing Lawyers than the Bar Exam
At one point, 34 states had diploma privilege rules but then the “ABA Code of Recommended Standards for Bar Examiners stated individuals should not be admitted to practice without passing a written bar exam.”
The Next New Normal in Law, Dispute Resolution, and Legal Education
A recent post anticipates that as we go through the current crisis, we will develop a “crisis new normal” and, after we recover from the crisis, a “normal new normal” (NNN).
Early Dispute Resolution Processes
This article describes various early dispute resolution processes and highlights presentations by Duncan MacKay, Deputy General Counsel & Chief Compliance Officer of Eversource Energy, and Conna Weiner, a mediator and arbitrator at JAMS and CPR.
The Law Can Be Dangerous to Lawyers' Mental Health
I’ve said it before and I’ll say it again. The law can be a very dangerous thing.
Here’s Your Theory-of-Change Book
Your wait for the Theory-of-Change book is over.
How to Calculate and Use BATNAs and Bottom Lines
Everyone talks about knowing one’s BATNA in negotiation and mediation. But that’s a lot easier said than done.
Theory of Change Symposium – Part 5 and Coming Attractions
This jumbo-size post is the last part in the Theory of Change Symposium.
Somewhere Between Reasonable and Crazy
The very touching Netflix movie, Marriage Story, provides an unusually realistic depiction of divorce dynamics.
Interview with John Lande
This is an interview with John Lande, a leading academic in the fields of law and mediation, by Robert Benjamin as part of Mediate's "The Future of Mediation and Negotiation in Our Culture, Politics and Society" video series.
Reflections on Our Field and Possibilities for Improvement
This article discusses reactions to the huge scope of our field.
We Have to Love More, Hate Less. We Got to Listen More and Talk Less.
A quick thought on what we can learn from women's soccer.
Letting Go and Forgiving
The New York Times “smarter living” column has an interesting piece about letting go of grudges and forgiving others.
Planning for Good Quality Decision-Making in Mediation Using PETSM
The current commercial mediation model handed down over the past 30 years is working just fine for lawyers and mediators (not to mention the court system).
Two Shrewd Legislative Negotiators / Mediators
This is a little-known story of how Barbara Jordan mediated a comprehensive agreement on immigration policy.
This article discusses how we can give ourselves permission to be in conflict and make mistakes on our way to becoming ourselves.
What Will Be the Future of ADR in US Legal Education?
Pepperdine will host a very timely two-day conference, on June 18-19, where these issues will be front and center: Appreciating our Legacy and Engaging the Future: An International Conference for Dispute Resolution Teachers, Scholars, and Leaders.
Case Study of Negotiations with Honey and Vinegar, Carrots and Sticks
This post provides an account of the campaign campaign, synthesized from news accounts listed at the end.
Dispute System Design for Facebook
This article discusses dispute system design criteria for the kind of institution that Mr. Zuckerberg suggested.
Stop Being a Damned Fool
Many lawyers are frustrated with their actual clients at times and are tempted to tell them the same thing – and sometimes do.
This post provides excerpts from my research summarizing significant stresses affecting each of these groups and notes resources and ideas for dealing with them.
How Can We Fix Legal System Failures to Properly Handle Sexual Offenses?
Over the past year, we have witnessed growing evidence of the massive failures of our legal system to deal properly with a rampant system in which powerful men sexually dominate others, especially women.
Reality-Testing Questions for Real Life and Simulations – and Ideas for Stone Soup Assignments
Litigation offers many potential benefits. It can help people solve difficult problems, make relationships and institutions function properly, and promote justice.
What Do Litigants Really Want?
This discusses the article "Inside the Mind of the Client."
A Case Study of Murphy’s Law in Missouri
Having lived through the painful U of Missouri conflict, Ben’s account seems extremely accurate – and brings up a lot of sad memories for me, reminding me of things I wrote at the time.
In Praise of a Trial
The trial of Paul Manafort is a good illustration of an important value of trials.
An Alien Perspective
I don’t understand people from your planet. Many Americans and other earthlings are obsessed with superhero movies.
The New Handshake: Using ODR to Create Value for Consumers and Businesses
ODR can help address a problem often referred to as “access to justice” (A2J).
Conflict in Context
Two recent programs offer vivid illustrations of the value of understanding the context of conflicts – and what this could teach us about conflicts (and life) more generally.
Difficult Conversations in the Modern Era of (Anti-) Social Media
Recent events show that our social problems are exacerbated by a wide variety of anti-social media behaviors.
Stone Soup: Do the Best Trainings, Continuing Education, Programs, and Conference Sessions You Can
One of the challenges in using educational programs to collect data is a tension between the goals of having speakers provide material to participants and gathering information from them.
Three Easy Pieces
This post describes three short pieces that you might want to use in courses or continuing education programs.
Stone Soup: Takeaways from New Hampshire Mediation Training
As part of recent mediation trainings, Susan Yates and I collected survey data and focus-group-like comments from the training participants.
Confusing Dispute Resolution Jargon
In response to my question, “Do you use “BATNA” wrong?,” I plead guilty, with an explanation.
Letter to Kelly
This article is a letter of advice to someone who is starting law school.
Do You Use "BATNA" Wrong?
Having reviewed negotiation publications and listened to colleagues, I can confidently assert that most of us grossly misuse the term “BATNA.”
Lessons From the ABA's Excellent Report on Mediator Techniques
The ABA Section of Dispute Resolution Task Force on Research on Mediator Techniques recently released an excellent report really worth reading.
In Praise of (Good) Disagreements
As they say, if two people always agree, one of them is unnecessary.
How Can We Build Common Ground Between Bubbles? - Revisited
Richard Barbieri, the general editor of ACResolutions, the quarterly magazine of the Association for Conflict Resolution, was struck by my series of posts after the November election about building common ground between “bubbles” in our society.
Dealing with Causes as Well as Symptoms of Law Students' and Lawyers' Lack of Well-Being
The National Task Force on Lawyer Well-Being just issued its report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.
Introduction to the Stone Soup Project Mini-Course
This is the first installment of an online mini-course about social science research methods relevant to the Stone Soup Dispute Resolution Knowledge Project.
Creating Knowledge Together
This article is about the idea that performers "making” the music may seem odd at first considering that they are “merely” performing music that others had composed.
Fascinating Simulation of Political Mediation in Scotland
The deliberative process this mediator conducted is such a stark contrast to the sharp political polarization and poor communication in the US these days.
Touching Story of Relationship of Constructive Engagement in Conflict
I think that one of our main missions in the DR field is to promote constructive engagement in conflict
Is Political Moderation a Virtue These Days?
In the wake of our extremely polarizing election this year, is moderation a virtue today?
Secondments in International Arbitration
Despite the heavy workload, practicing international arbitration can be fun; you are always challenged by disputes arising from a diversity of issues that test your ability to design the best strategy to achieve the best possible outcome for your client, combined with the complexity that a single case can reach and the many instances in which a sovereign State is involved, as in investment and State-to-State arbitration.
What is Negotiation, Anyway?
What is Negotiation? Actually, it is surprisingly difficult.
Building Common Ground Between Bubbles - Part 5
President Obama gave his farewell address, which dealt, in part, with building common ground between people divided across so many boundaries.
Building Common Ground Between Bubbles - Part 4 of 4
Troubled by the corrosive conflict stirred up by the election, I have written a series of posts about how we might move forward constructively, particularly on the personal (as distinct from the political) level.
Building Common Ground Between Bubbles - Part 3 of 4
People should first try to understand others, especially those with whom we disagree – perhaps disagreeing quite strongly.
Building Common Ground Between Bubbles - Part 2 of 4
The Presidential election and the week following has brought the deep divides in this nation to a head, and brought to light numerous issues in our country.
How Can We Build Common Ground Between Bubbles? Part 1 of 4
This article analyzes Republican and Democratic 'bubbles" and how we can build bridges between them.
Lainey Feingold's Book on Structured Negotiation
I recently had a chance to talk with Lainey Feingold, the author of a great new book on negotiation, which she describes below.
Non-Apology Apologies, Part 2
It seems that there are a lot of stories about questionable apologies in the news lately. I don’t intend to discuss all of them, but here are a few more thoughts about some of them.
Training Law Students to be Leaders
The Ohio State program teaches students about lawyers’ service as leaders in various ways in their work in addition to lawyers’ generally-recognized leadership roles in civic society, including public service, outside their day jobs.
The law generally doesn’t do much to promote apologies. Even if courts could order parties to apologize, the apologies probably would be of the unsatisfying tell-your-sister-you’re-sorry variety.
A History Lesson in Negotiation
One can look at our history as a 240-plus-year multi-party multi-issue negotiation in which our shared understandings have been revised and refined.
Will Gretchen Carlson's Case Against Roger Ailes Go Through the Courts Because of Sloppy Drafting?
You may have heard about the lawsuit that Gretchen Carlson filed against Roger Ailes.
Where the "Puck" is Going -- and What Faculty Should Do to Help Students Get There
Analogizing the puck to the legal and dispute resolution fields, this program addressed where we are going and how, as legal educators, we can best prepare our students to “skate” there.
Mashburn on Mediation in Open Adoption Cases
I remember one case that broke my heart in which I wish we could have arranged an open adoption.
Compared to What?
Although public perceptions are important indicators about the functioning of the court system, they are subject to biases and should be supplemented with other indicators.
Presidential Lecture on Listening and Compromise
President Obama came to prominence in 2004 with a speech in which he argued that there isn’t a red America and a blue America but rather a single United States of America. Looking back twelve years later, this may seem like a rather odd notion in a country riven by intense political polarization.
One might assume that using a “planned early dispute resolution” (PEDR) system should be a “no-brainer” for businesses that regularly litigate because litigation-as-usual undermines so very many business interests.
Conversation with Heather Kulp About ADR Careers
Readers will recall that Michael Moffitt posted a series of posts by Heather Kulp about giving advice to students about developing ADR careers and that I wrote a response to Heather to start a conversation.
Is Proportionality of Discovery Good or Bad?
Many of us like the goals of reducing the adversarial elements of litigation but also want to protect plaintiffs’ reasonable access to the legal system. So are the new rules good or bad?
Here’s an account of the negotiations leading up to the international climate change agreement.
Another View of the New FRCP Rules
I recently posted an item citing the IAALS’s work touting the benefits of the new amendments to the Federal Rules of Civil Procedure. For a counterpoint, here’s a draft article by SMU Professor Elizabeth G. Thornburg, Cognitive Bias, the ‘Band of Experts,’ and the Anti-Litigation Narrative.
BATNA, MLATNA – No Big Difference, Right?
All the negotiation texts I reviewed refer to BATNAs for developing negotiation strategy without mentioning the more useful concept of MLATNAs. Hopefully, you are at least aware of the latter – the most likely alternative to a negotiated agreement (not just the best alternative).
How Can We Help in Major Social Conflicts, If At All?
I have gotten emails from dispute resolution colleagues asking what we, in Missouri’s dispute resolution center, might do (or might have done) to help manage the conflict at our university more constructively.
Dispute Resolution Systems and the Future of Our Field
First, I suggested that trials should be considered as part of (A)DR. Now, my school publishes a symposium on judicial education in our Journal of Dispute Resolution. You might understandably wonder if we have lost our freaking minds.
What Makes Lawyers Happy? – And How Can You Help?
"Money can’t buy me love." – Paul McCartney. As a corollary to psychologist McCartney’s insight, money can’t buy lawyers (much) happiness.
Tips for Lawyers Who Want to Get Good Results for Clients and Make Money
Recently, I was asked to write an article with advice for law students and lawyers, My Last Lecture: More Unsolicited Advice for Future and Current Lawyers. Here are some highlights from that article.
Conversation with Peter Benner About PEDR, Part 6
I think company managers, by and large, do feel they have control, which is, as you say, reflected in increasingly tight litigation management, which does predominate and persist, as well as loosened loyalties to a particular firm. Beating up lawyers on fees is now considered part of the relationship. The issue is one of culture and disposition rather than control.
Seeing the World Through Others’ Eyes
In our conversations, I have talked about the value of trying to see the world through others’ eyes. There are several reasons why I have found it valuable including moral, practical, and even mental health reasons – it helps me maintain whatever sanity I have left.
Planning is Critically Important for Early Dispute Resolution
Early mediation is a waste of time. This was a refrain I heard several months ago at a meeting of lawyers representing large corporations.
Recipes for Success
I love the cookbook that Andrea and 1001 chefs wrote, Cooking Up a Deal: Negotiation Recipes for Success. It’s a wonderfully short and fun piece to assign for the last day of class.
Minimizing Unnecessary Violence in Litigation and Other Dispute Resolution Processes
We in ADR should not undervalue, when analyzing the dispute resolution landscape, the regulatory function of litigation in the United States. A business executive may feel morally affronted by litigation, but that doesn’t mean that the litigation (and its attendant ADR processes) isn’t warranted or socially beneficial.
Litigation as Violence
Litigation is an important part of the dispute resolution system and it is quite legitimate for people to use it in appropriate cases. Litigation (including negotiation and mediation conducted during litigation) often functions appropriately without causing undue violence or other harm. People usually don’t pay as much attention when things work properly and this may be the case with litigation most of the time. But too often, unnecessary injury is a by-product.
How Can You Get a Piece of the Action?
There is a significant problem with the traditional negotiation paradigm of two coherent models, positional and interest-based negotiation (or other labels for essentially the same models). This paradigm has been helpful in moving us forward in recent decades. But simply saying that something was a interest-based or positional negotiation not only doesn’t convey things clearly, but it actually can be misleading.
We Need a Better Consensus About Negotiation Theory
In previous posts, I argued that there are serious problems with the general consensus on negotiation theory reflected most clearly in Getting to Yes. I described problems with the system of negotiation models, which assumes that most or all negotiations can fit into two models of highly-correlated variables (or a few variations of these models).
I recently stumbled upon a useful analogy that I used in our required Lawyering course, namely that lawyers are like “conflict doctors.”
Some Good Questions
In 1998, commenting on the hot controversy about the “Rand Report’s” finding that certain mediation programs did not save time or money (measured in terms of lawyers’ work hours), Professor Craig McEwen argued that it was the wrong question to ask whether “mediation works.”
What is Negotiation?
We often think of negotiation as a distinct and climactic phase of a dispute. Interactions leading up to the final settlement event are often considered merely as preparation, if that. In litigated cases, we often ignore the litigation as if it was largely irrelevant to the information available and the dynamics in negotiation.
To Puff or Not to Puff . . . (or When and How to Puff)
I’m no expert on moral philosophy or the social psychology of lying, but I think that most people probably believe that some misrepresentation is acceptable and even justified. Students in my Lawyering course regale the class with tales of their perfidy, sometimes with pride rather than shame.
Where I’m Coming From . . . and Want to See Us Go
I came of age in the 1960s and 1970s and saw lawyers and the courts as tools for social justice. I went to law school because I was interested in public interest law. Many people in the ADR field have similar backgrounds and interests, which is not surprising considering the shared motivation to help people.
Collaborative Lawyers' Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients' Informed Consent to Use Collaborative Law
Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions.
The Revolution in Family Law Dispute Resolution
In the past fifty years, the revolution in American family law led to a revolution in family law dispute resolution. Virtually every aspect of divorce law has been transformed since the Mad Men era, including grounds for divorce, characterization of marital property, child custody presumptions, and alimony and child support rules. Marriage is not assumed to be a lifelong commitment. Fault generally is not legally relevant. Gender equality is a fundamental principle.
How Neutrals Can Provide Early Case Management of Construction Disputes
This article describes how neutrals can provide early case management and resolution services to help parties in construction disputes resolve them more efficiently.
An Empirical Analysis of Collaborative Practice
This article summarizes empirical research about Collaborative Practice, the Collaborative movement, its interaction with other parts of the dispute resolution field, and its impact on the field.
Relationships Drive Support For Mediation
Business lawyers and executives widely support mediation. According to a recent study,
however, that support is not based on dissatisfaction with courts or perceived advantages of
mediation, like lower costs. In fact, business lawyers’ and executives’ support for mediation is
related to perceptions about the effects of mediation on business and organizational relationships.
Helping Lawyers Help Clients Make Good Decisions About Dispute Resolution
Lawyers face a great challenge in advising clients about what dispute resolution (DR) process to use. There are many DR processes and people are developing new variations all the time. The choice of process can have a huge impact on the parties. Thus it is important for lawyers to give clients good advice about the choice of process, though this is easier said than done.
The Uniform Collaborative Law Act’s Contribution to Informed Client Decision Making in Choosing a Dispute Resolution Process
This Article describes how lawyers can implement the requirements of the Uniform Collaborative Law Act to obtain clients’ informed consent. The Act requires lawyers to obtain clients’ informed consent before undertaking a Collaborative representation but does not specify the information that lawyers must discuss with prospective Collaborative parties.
The Promise and Perils of Collaborative Law
Getting people to use an interest-based approach in negotiation has been a difficult problem. Experts have provided helpful suggestions for 'changing the game,' though these ideas are usually limited to case-by-case efforts within a culture of adversarial negotiation. Collaborative law (CL) is an important innovation that establishes a general norm of interest-based negotiation and intentionally develops a new legal culture. CL reverses the traditional presumption that negotiators will use adversarial negotiation.
Common Misconceptions About Cooperative Legal Practice
Pauline Tesler, a prominent leader of the Collaborative Practice movement,
complained about critics using a “doubting game” to unfairly criticize Collaborative
From John Lande
Mediate.com serves an invaluable function of commissioning and
collecting materials of great practical value to dispute resolution
practitioners, teachers, students, and the public. The materials are
easily accessible and cover the full range of the field. The field owes
a great debt to its founders and editors of this fantastic resource.
Lessons for Collaborative Lawyers and Other Dispute Resolution Professionals from Colorado Bar Association Ethics Opinion 115
In February 2007, a Colorado Bar Association ethics opinion found that four-way Collaborative Law agreements between lawyers and clients constitute per se violations of ethical rules prohibiting conflict of interest, but that similar Cooperative Law agreements do not violate the ethical rules. Although the opinion’s reasoning and conclusion are problematic, it does highlight the importance of ethical issues in Collaborative Law. It also gives recognition to Cooperative Law, which is similar to Collaborative Law, but does not involve a disqualification agreement. (The disqualification agreement precludes the parties from retaining their Collaborative Lawyers if they decide to litigate.) Adding Cooperative Law to the roster of commonly-available ADR processes has the potential to create great benefits for parties, practitioners, the dispute resolution field, and society.
Collaborative and Cooperative Law — Promise and Perils
Collaborative law (CL) is an important innovation that establishes a general norm of interest-based negotiation and intentionally develops a new legal culture. CL reverses the traditional presumption that negotiators will use adversarial negotiation. CL parties and lawyers sign a participation agreement establishing the rules for the process. Under these agreements, lawyers and parties (negotiators) focus exclusively on negotiation, disclosing all relevant information and using an interest-based approach. Negotiators work primarily in four-way meetings in which everyone is expected to participate actively.
Respecting Rival Mediation Philosophies
Arguments over terminology are not just academic exercises. These debates shape actual practices of mediators regarding what it means to be a good practitioner, referring to shared meanings and norms within one's practice community. For example, if the facilitative-evaluative distinction described below gains currency, mediation shoppers may base their selection of mediators on perceptions along this dimension.