Mediation – Red Devil Dog Restaurant – Stages of Negotiation/Mediation, Role of Mediators, Opening Statements, Apologies, Moving Toward Closure

Strategies for Active Listening, Information Bargaining, Managing Concessions, Moving Beyond Impasse, Acknowledgment and Apologies, the Roles of Lawyers/Agents and Clients/Principals.
Objectives: To understand rapport development, active listening and questioning skills, strategic use of information, bargaining skills, management of concessions, and use of apologies. To begin to examine the role of lawyers/agents and clients/principals.
Assignments:
* Please review RESOLVING DISPUTES, pp. 151-70 (chapter 5), RSMo 538.229, and the Kress article on Apologies. Please read the Sparks article on The Tension Between Principals and Agents, distributed in class.
Please come to class with two comments or questions about the readings.
* Please review the General Information for Broken Benches, available on Canvas. At this point you do not know which party you will represent.
Please prepare a negotiation plan. Include two columns, one for each side, and identify what you understand/guesstimate each side wants (substantive and relationship goals/positions), why (underlying interests), options for achieving goals, aspiration points, resistance points (bottom lines), BATNAs, strengths/weaknesses (sources of power), optimal negotiation styles, plus ideas about ways to use the mediator the help accomplish your goals.
Minimum two (2) full pages, maximum three (3), 12 pt. New Times Roman, 1.5 spacing, 1 inch margins.
In-class Simulation: Broken Benches
Assignment
Stages of Negotiation/Mediation, Role of Mediators, Opening
Statements, Apologies, Moving Toward Closure
*Please prepare a mediator’s opening statement for the Tree Cutter . Minimum two pages, maximum 3 pages, 12 pt. New
Times Roman,1.5 spacing, 1 inch margins. (You might review mediators’ opening statements in the Red
Devil Dog and Community Mediation videos.) Bring a copy to class for you and a copy to hand in to me.
Practice presentation of your opening before class so you can present without referring to your notes, if you
are called upon to be a mediator.
All students should review the general information for the Tree Cutter mediation and the Lottery Ticket mediation (attached). My role is a Tree Cutter (If you have a designated role for the Tree Cutter mediation, review the information distributed for your party, prepare a rough negotiation plan, and contemplate possible opening remarks. Consider what you understand/guesstimate each side wants (substantive and relationship goals/positions), why (underlying interests), options for achieving goals, aspiration points, resistance point (bottom line), BATNAs, strengths/weaknesses (sources of power), optimal negotiation styles, plus ideas about ways to use the mediator the help accomplish your goals. Bring a rough copy to class for you to use in the mediation.)
This link should take you to the video: https://youtu.be/7lbv365xjlw
Assignments requirements:
EVERYONE: Please read and outline RESOLVING DISPUTES, pp. 151-66 (chapter 5),
Kress article on Apologies, and all handouts ( Charectastics of the mediation process, Study: saying sorry helps defense get good settlemet by kelly kress), Mediation / Negotiation Process: ” Getting to Yes”, Conflict Styles, she Negotiates and Changes Everything by Victoria Pynchon
. Please come to class with two comments or questions about the readings.
EVERYONE: All students should prepare a mediator’s opening statement. Minimum two pages, maximum 3 pages, 12 pt. New Times Roman,1.5 spacing, 1 inch margins. (You might review mediators’ opening statements in the Red Devil Dog and Community Mediation videos.)
Syllabus
REQUIRED COURSE MATERIALS
Jay Folberg, Dwight Golann, Lisa Kloppenberg, and Thomas Stipanowich, RESOLVING DISPUTES:
THEORY, PRACTICE, AND LAW (3d ed. 2016).
You may also use earlier editions. Supplemental
reading material, class handouts, and videos will be provided during class or made available on-line.
II. COURSE OBJECTIVES/LEARNING OUTCOMES
Negotiation and mediation are the most commonly used forms of legal dispute resolution in the United
States and around the world. This course introduces students to the theory and practice of negotiation and
mediation through weekly readings, simulations, videos, and drafting exercises.
This course explores
dispute resolution processes in the private and public sectors, and provides concepts and tools that apply to
a variety of disputes, primarily in the areas of domestic commercial and employment law. Negotiation is a
pre-requisite for this course.
Employment Law and Employment Discrimination will be particularly helpful,
although not required.
The course begins with a focus on conflict, the causes of conflict, and avenues for resolving conflict. The
course builds cumulatively from simple negotiations to those of greater complexity – starting with two-
party, single-issue, one-shot negotiations and building toward multi-party, multi-issue, court-ordered
mediations that evolve over time. The course progresses step-by-step through the mediation process.
The
course focuses on the development of the skills necessary to be successful as both negotiator/advocates and
mediator/dispute resolution experts in multiple commercial and employment settings, including
conciliation, mediation, court-ordered dispute resolution, ombuds programs, and internal corporate and
employment dispute resolution.
This course provides students with a set of conceptual frameworks and practice experiences that will
enhance understanding and skill level in all of these areas, from the various perspectives of mediators,
advocates, and clients in mediations.
The ability to participate successfully in legal negotiations and
mediations (facilitated negotiations) rests on a combination of several core lawyering skills that students
will acquire in this course:
 Theoretical Understanding and Analysis are important because dispute resolution participants
cannot develop promising negotiation and mediation strategies without an understanding of the
theory of dispute resolution. Through analysis of case studies and discussion of articles on dispute
resolution, you will learn lessons that you can apply to real-world dispute resolution.
 Intrapersonal and Interpersonal Awareness and Competency are important because dispute
resolution of any kind involves communication, relationship development, trust building, and
persuasion. Cases and readings serve to integrate the analytic points into practice and to develop
intuition about complex, real-world dispute resolution dynamics. Structured negotiation and
mediation simulations are used to isolate and emphasize specific analytic points and essential skills.
Through participation in negotiation and mediation simulations, you will enhance your powers of
communication, relationship development, trust building, and persuasion, and experiment with a
variety of negotiation and mediation styles and strategies. From repeated participation in
simulations that involve a shifting mix of cooperation and competition negotiation styles, and
important ethical choices, your understanding of negotiation and mediation practice will develop
and improve throughout the semester.
 Planning, Drafting, and Reflection are among the most important aspects of successful dispute
2
resolution. However, these skills are often neglected. In order to develop your skills in these areas,
you will be required to draft and submit weekly planning memos or mediation statements and
weekly reflective self-assessments throughout the semester, plus a final take-home paper.
By the end of the semester, students will be able to effectively:
 Recognize and utilize techniques to communicate and collaborate with diverse stakeholders about
their cases, the law, and policy in negotiations and mediations;
 Recognize and utilize techniques to engage in fact finding in negotiations and mediations;
 Recognize and understand the impact of context and the distribution of power in negotiations and
mediations (including culture, gender, race, law, economics, politics) and acknowledge ways to
control biases and other informational barriers sourced in the adaptive unconscious;
 Identify and understand the underlying interests of all of the stakeholders in negotiations and
mediations;
 Recognize and understand opportunities for and barriers for stakeholders to create and claim value
on a sustainable basis in negotiations and mediations;
 Recognize and understand the impact of intrapersonal and interpersonal styles and persuasion
techniques in negotiations and mediations;
 Recognize and understand the range of possible moves and countermoves both at and away from
the bargaining table in negotiations and mediations;
 Identify and utilize necessary oral and written advocacy skills with and on behalf of stakeholders in
negotiations and mediations;
 Understand your duties of loyalty, confidentiality, confidence, and diligence to stakeholders and the
process in negotiations and mediations;
 Enhance your communication, relationship development, trust building, and persuasion skills in
negotiations and mediations;
 Enhance your collaboration skills and maximize your effectiveness working as a team member to
advance the interests of the stakeholders and the process in negotiations and mediations;
 Develop an understanding of existing domestic dispute resolution systems (including conciliation,
mediation, court-ordered dispute resolution, ombuds programs, and internal corporate and
employment dispute resolution) and recognize aspects of the existing systems that need improving;
and
 Develop the fundamental ability to learn from experience
Negotiation/Mediation Simulations:
Each week, you will be assigned a role, paired with one or more counterparts, given instructions
(often including confidential information), and asked to prepare for a simulation before or during
class. These simulations are an essential vehicle for learning in the class.
Therefore, one major
requirement of the class is that you conscientiously prepare for, carry out, and be ready to share
insights gained from the simulations with the class. In these class simulations and the relevant
discussions, we are primarily interested in your faithful and creative participation, the quality and
originality of your analysis and discussion, and your reflections on how you might have done better.
The quality of our discussions depends on thorough preparation of both the reading material and the
role play simulation material before the class. Failure to prepare and responsibly carry out these
simulations will greatly diminish your learning and harm your assigned role play partners, whose
learning experience depends on your being available and prepared.
For the simulations
that have fixed quantitative goals, you should take the numbers as representative of your
or your client’s true interests and try to do as well as you can, subject to whatever considerations of
responsibility and ethics you expect would shape your behavior in the dispute.
For the simulations with
more complex, less quantitative goals or mixed interests, you should think hard about what interests you
would care about and what trade-offs you would be willing to make, in the specified situation.
You may sometimes feel uncomfortable trying to out-guess or outwit other class members, but
overwhelmingly, former students have found the experience personally and professionally rewarding.
This
course provides a low-cost chance to try different negotiation and mediation approaches. To the extent that
your wits and emotions are engaged in the exercises, the exercises will help you become more aware and
effective negotiators/mediators. As with a tennis match among friends, it does more for your game – and is
more fun – to play vigorously and intelligently while on the court.
Some general rules for role players in simulations:
1. Stay in the role. Each role is important and is intended to be a learning experience for the role
player, the other participants, and observers.
2. Familiarity breeds comfort! It is easy to become complacent.
Try not to do it. Losing interest in the
process hurts everyone.
3. If the role is hard to identify with or is unclear to you, ask for assistance.
4. It is okay to be a little original and add to the four corners of the document – just do not change the
fundamental intent. Remember only you can make it real and creativity certainly counts, but you
must stick to the basics of the problem.
5. At times, we may conduct the role play in a “theater” or “fishbowl” style with one set of
participants in the front of the room and the rest of the class observing. Observers should be
prepared to comment, raise questions, and assume the role of the role play they were assigned.
744021
36 minutes ago
Class 6: Strategies for Active Listening, Information Bargaining, Managing
Concessions, Moving Beyond Impasse, Acknowledgment and Apologies, the Roles of Lawyers/Agents
and Clients/Principals.
Objectives: To understand rapport development, active listening and questioning skills, strategic use of
information, bargaining skills, management of concessions, and use of apologies. To begin to examine the
role of lawyers/agents and clients/principals.
Assignments:
9
* Please review the Kress article on Apologies and RESOLVING DISPUTES, up through pp.170; read the
Sparks article on The Tension Between Principals and Agents, distributed in class.
Please come to class
with two comments or questions about the readings.
* Review the General Information for Broken Benches, available on Canvas. At this point you do not know
which party you will represent.
Please prepare a negotiation plan. Include two columns, one for each side,
and identify what you understand/guesstimate each side wants (substantive and relationship
goals/positions), why (underlying interests), options for achieving goals, aspiration point, resistance point
(bottom line), BATNAs, strengths/weaknesses (sources of power), optimal negotiation styles, plus ideas
about ways to use the mediator the help accomplish your goals. Minimum two (2) full pages, maximum
three (3), 12 pt. New Times Roman, 1.5 spacing, 1 inch margins. Please email a copy to instructor and TA
by 5pm the day before class and bring a copy to class for yourself.
In-class Simulation: Broken Benche

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