ADR – Pittman – Fall 2012
1. Makeup of Class and My Expectation
a. Syllabus posted on TWEN page (not setup yet).
b. We’re going to cover Chapters 1-5.
c. Lecture and classroom discussion.
d. Role Play
i. No arbitration role play.
ii. Pressure-induced experience.
iii. Negotiations will last 3-5 hours.
iv. Must get together, do the research on the area of law, then organize the mediation, etc.
v. They take like 5 hours, so can’t do it w/in confines of class, so must do them outside of class. Have to schedule w/ groups and Pittman.
i. Role Play grade = 1/2
ii. Except integrating counsel, he we attend all role playing.
iii. Paper = 1/2
1. Not research paper.
2. “Think” Paper
3. Put in writing our reflections and comment of the readings we do.
4. He doesn’t call on people to do anything during lecture, so this is how he makes sure we read.
5. This way we get to listen to lecture too and get a better perspective.
6. 25-30 pages double spaced – FUCK.
7. Syllabus has further description.
i. Mandatory – probably be here everyday unless you’re ill/interview.
ii. Given it’s a practice course, others rely on you being here.
iii. Will allow TWO absences w/o penalty.
iv. Will deduct ½ letter grade.
v. If you miss a role play, you get no credit from that – will take you down at least a letter grade.
TODAY’S LECTURE – PAGE 1-49
1. Much of this stuff – the theories you will discuss – is basically common sense and a lot of psychology is involved. A lot of understanding how people act and react is important when you talk about the negation and mediating with someone. A level of maturity, life experiences are important.
2. As an attorney, a big part is understanding your client and have them understand you.
3. Develop a spirit of being empathetic and understanding – looking for common interests and goals, trying to get your opponent to understand you while you show empathy toward that person.
4. Adversarial and Problem-Solving
a. Understanding empathy is important for both.
5. When the purposes of the course is for you to approach disputes/conflicts differently than you would if you’re a litigator.
a. If you’re a litigator, they’re a certain mindset/mentality to playing hardball.
b. This isn’t trial practice, this is an alternate way.
c. This is an alternative way to resolve disputes so everyone is a winner.
d. You should negotiate/mediate to get a win-win situation.
6. Some people who take this course don’t like conflict/dispute – they’re accommodators/avoiders.
a. This book is to teach you to embrace conflict/disputes in a manner that is good for your client.
b. You want to get a high out of doing it well.
7. Conflict vs. Dispute
i. Anytime you have/perceive that your interest are in opposition to someone else’s interest. Conflict of interest.
ii. Based upon that definition, we have conflicts with many people on a daily basis.
i. When one person in conflict with another takes an action to escalate the conflict to the next level.
ii. The dispute with your boss starts when you file a grievance against him.
iii. The lawyer needs to figure out which stage you’re at.
1. If you need to deescalate it to keep it from becoming a dispute.
2. Or escalate it to turn it into a dispute.
3. You need to know where it is and where it needs to be.
4. Do you want me to save your relationship with your siblings over this will contest or do you not care? You need to figure out what the client moves to determine your next move.
5. Your moves are dictated by your client’s goals/interests.
6. Sometimes they don’t know what they want, and they leave it up to you whether to save their relationships. Don’t take that responsibility b/c they may hate you for it later.
c. Get at underlying reason why they’re in conflict/dispute.
i. P. 3-5: They may be in conflict/dispute b/c of individual characteristics.
1. She’s not given her props b/c homemaker; he’s not given props for his career.
2. There is more involved in mediation/negotiation than money. You can’t ignore the underlying reasons for the divorce/conflict.
ii. Social Process – what is it about (p.4-6) the competition of resources – people seek to maximize their gains and minimize their loss. They may find themselves in conflict b/c a competition for money, resources, space in home, respect, affection from children.
iii. Social Structure Theories (p. 4) – societal things – the reason why the woman is having trouble is b/c of a glass ceiling – her work is not valued as much as men’s work – that’s why she has conflict w/ her boss. Old religious system – women are supposed to be homemakers, so husband doesn’t want her to do it.
iv. What is the purpose of all this?
1. When you come to a legal conflict, must determine what is causing it. Is it individual characteristics/competition/carrying out society’s notion of how people should act?
2. Be more analytical about this. This is not a surface problem, maybe a deep problem. The theoretical underpinning of a conflict/dispute may have to be looked at.
8. Conflict as Perception – You also have to think about the way they perceive the conflict/dispute.
a. If you care about the way you’re perceived, it doesn’t matter if you’re right or not. If client is perceived as manipulator, that’s what it is. As long as you perceive me, it doesn’t matter if I am that or not. As long as you perceive me that way, it doesn’t matter because that’s what client is to.
b. Must change your opponent’s perception.
i. People don’t like to do this b/c it’s hard.
ii. But if you don’t change the perception, they’ll always be in conflict.
c. If you don’t change perception, they’ll still hate your client.
9. Conflict as Feelings – You also have to make sure they’re no longer angry with your client. Otherwise, they’ll still be in conflict.
10. Conflict as Action – Not only do they perceive you as bad and they’re angry, but they’re actually doing things to sabotage you.
a. Bad evaluations, whatever it is.
b. In order to have a resolution, we have to change the actions of your opponent.
11. PAGE 9-13: Not only do you have to be the smart one, but you have to be willing to take a risk.
a. If you were Trump’s atty, you can’t tell them anything cause they’ll fire you. You keep quiet and give them what they want.
b. But that’s not what they really need.
c. You have to be courageous enough to talk to them about what they need.
d. Don’t be afraid to say No.
e. You may know what to do, but you may be afraid to do it.
f. In the will dispute, if the law is on our side, that’s all I’ll talk about. No, you have to give them what they ask for. But Lawyer’s morality is apart of the equation.
12. Different Types of Conflict
13. Life Cycle of a Dispute
a. Important to know what when you frequently say something or take a particular form of action, you can’t change it. When the ball gets rolling, it starts to take a life of its own.
b. Hold that thought in the context of a life cycle of a dispute.
c. You’re engaged in a conflict w/ your employer – wants you to work late – wants you to work overtime and not pay you.
d. You sabotage him by complaining to his superior.
e. He will return the favor w/ bad evaluations and giving you bad work.
f. You will give another bad evaluation.
g. You’ll involve atty’s.
h. Then th
ve relationships, moreso than mediation (not mad if you just want to talk to them, but mad if you sue them).
viii. Less of a process of escalation than full blown lawsuit.
i. No precedent (see above).
ii. May want it to be public if you’re PETA.
iii. Being faster can be a con for big companies being sued for nuisance. They want to make sure others don’t sue them for it later.
iv. Must have cooperation from other side – both have to agree to negotiate.
v. Other side may act in bad faith – may pretend they’re ready to negotiate when really they just want all of your information to use in court later.
c. Client may see other pros/cons from their specific situation that atty is unaware of.
d. If you want to escalate it a little more, the next thing and the most stressful thing is mediation.
12. Third Option: Mediation
a. Negotiation can take place if the neighbors get together over coffee. The more complex cases need lawyers. A little more formally over coffee. But they can meet at any time, stay as long as whenever, more informal than mediation. Just the parties themselves are involved.
b. Mediation – you bring in a mediator in the mix.
c. It’s more complex than negotiation b/c you have a third party mediator controlling the process.
d. Theoretically the only difference is the addition of the mediator.
e. So all the pros/cons of Negotiation become the pros/cons of mediation.
f. But there’s some addition pros/cons from the mere presence of the mediator
g. Additional Pros
i. Mediator has same amount of subject-matter and/or process expertise. You can pick a mediator that’s an expert in the specific type of case.
1. You may just want one who’s an expert at the process, get people to stay in the same room and engage in productive negotiation.
2. A good mediator who knows how to mediate, good interpersonal skills, no how to get people to move, make offers/counteroffers is someone who might be able to settle the case.
3. A mediator gives you a potential of having an expert mediator that could help you facilitate the negotiation or a good mediator with subject-matter expertise that can tell you things that will make you see things to make you want to settle.
ii. This mediator can give you a dose of reality – they make think the case is worth more than it really is. They don’t believe what the attys say about the value of the case, but this mediator with expertise in these types of cases may be able to shine light and clients be more receptive to it.
h. Additional Cons
i. Mediator, because of her prestige, may try to strong-arm. You don’t want a mediator to be an undue influence over the negotiation. You don’t want a dictator telling people what to do. You want a facilitator.
1. A con could be that you have the wrong mediator.
2. Check their references to see what they’re about first.
ii. Sometimes it might be the wrong case for a mediation – may not be enough money involved for your client to want to pay $400/hour for 9 hours.