Mediation Seminar
Dana Curtis
Stanford Law School
January Term 2005

Course Syllabus

I. DROP POLICY
The Registrar’s Office recently informed you that you have been selected for and enrolled in this course and asked you to confirm your acceptance. Once you confirm your enrollment, you may not drop the class without receiving NK. Because the course is designed around the exact number of students, the successful operation of the course depends upon your attendance. If due to an emergency during the break it becomes impossible for you to attend, please contact me immediately (see below for information about how to reach me), so we might fill the class with another student from the wait list. If you do not come to the first class and have not been excused by me, or if you drop the course after classes begin, you will receive NK.

II. READING
While this course is designed to be over sixty percent experiential, or process-oriented, it does have a substantial and important content component, which is conveyed in part through reading assignments. It is critical to your learning that you complete the assigned readings. Because this course is an intensive seminar, you will have limited time to complete outside reading during J-Term. I therefore suggest you begin reading during the break. Please see the Course Schedule below for your reading assignments. Readings, except for the text listed below, may be found on Coursework, http://coursework.stanford.edu.

Required Text (available at most bookstores, including Stanford Bookstore):

• Difficult Conversations by Stone, Patton and Heen

III. VISITING JUDGE AND COACHES
This J-Term Judge Clifford Nelson will join us as an observer and coach. Judge Nelson is a family court judge from Toronto who wants to learn more about mediation. Throughout the course, ten to fifteen Bay Area mediators will demonstrate, coach and serve as panelists for the Mediation Seminar.

IV. CONTACTING ME
Please feel free to call or e-mail me if you have questions about the course. I will be on vacation and out of contact by telephone and e-mail from November 25 to December 14. Below is information about how to reach me after I return:

Before J-Term or after class and weekends:

Home office phone: (415) 331-5158
Home phone: (415) 332-4822
Home office fax: (415) 331-5309
E-mail: danacp@aol.com
Office address: 116 Caledonia Street Sausalito, California 94965

At Gould Center: 725-6543

V. COURSE OVERVIEW
This predominantly experiential course immerses you in mediation, a problem-solving approach to resolving disputes, where the parties to the dispute, with assistance of a mediator, are in charge of the resolution. Through demonstrations, role plays, videotapes, coaching, class discussions, presentations, readings and written assignments, you will learn about the theory of mediation and its practice from the perspective of a mediator, a party and a lawyer representing clients in mediation. The course goals are:

• To understand the nature of conflict and principles of conflict management;
• To consider policy and ethical implications of the expanding use of mediation;
• To analyze the emerging body of law concerning mediation confidentiality;
• To develop communication skills essential to effective mediation;
• To experience and analyze various mediation models and mediator styles;
• To understand and experience concepts of emotional literacy and reflective practice as they relate to development as a mediator;
• To understand and the role of lawyer in the mediation context and to develop skills in advising, preparing and representing clients in mediation; and
• To apply the understanding and skill of mediation to the role of facilitation.

VII. ATTENDANCE
Full Attendance Is Mandatory. The class meets January 3 through 14. Please consult the schedule below for exact times and dates for each class. You will receive NK if you are absent from any class, except:

• If you have been excused by me because of illness before class (this means you must call me before class); or
• In case of an emergency and you notify me as soon as you can either before or after class.

VIII. COURSE REQUIREMENTS AND ASSIGNMENTS

Discussions and Simulations
Active participation in class discussions and simulations is essential. The course will provide great latitude for you to express your thoughts, feelings and opinions, to bring your strengths and interests to the mediation process, and, most of all, to make mistakes. Nevertheless, class participation must evidence thoughtful and thorough preparation, including thorough mastery of the fact pattern for the role plays, as well as understanding (and application) of the theories and techniques set forth in the assigned readings and discussed and demonstrated in class. Your preparation is necessary not only to ensure the quality of your own learning experience, but also that of your classmates.

Writing Assignments

Journals
You will be required to complete at least five two-to-three-page journal assignments. I include journals as part of your learning experience for the following reasons:

• Research on learning indicates that thinking and writing about what you are to learning significantly increases your learning.
• We believe understanding mediation and being an effective mediator require you continually to be alert not only to the external situation (what’s going on between the participants or the participants and the mediator) but also to the internal experience of the mediator (what the mediator is thinking and feeling). This two-level awareness enables the mediator to keep his or her prejudices, biases or unconscious patterns from adversely affecting the parties’ ability to reach an agreement that works for them. By reflecting on your mediation-related experiences both in and outside of class, you will see more of the “truth” about yourself and about mediation. If you can see more clearly what “is” from your point of view you are in a better position to make choices about how to interact with participants and to grasp and evaluate the participants’ view of you.
• Journals also allow me to have dialogue with you in an individualized way -- for you to ask questions of me; and me, of you.

Format for papers

1. Papers should be 2-3 typewritten pages.
2. Include the number of the journal assignment in the heading of your paper
3. When handed in, papers should be placed in a two-pocket folder, with your name on the paper and on the outside of the folder.
4. Return all papers to your folders after you read my comments.

• Write the journal entries as soon after class as possible, allowing yourself 20-30 minutes of uninterrupted time.
• Focus on incidents you do not yet fully understand. The journal writing process is one of discovery, not simply of reporting what you already know.
• Ask yourself questions and admit it if you can’t answer them. Or ask questions and answer them. Wonder about the causes and consequences of different experiences of your mediations.
• Write at first for yourself; later, rewrite so I can grasp your meaning.

Journal Assignments

Journal 1 – Conflict
Mandatory
Due: January 3
All of your life you have been a witness to conflict. Most of you have been called upon, or have volunteered, to help others resolve conflict. Therefore, you may have developed an approach to conflict resolution. Since the family context is generally where we learn our earliest lessons and adopted our “default” modes of responding to conflict, this assignment is designed to have you reflect on your experience with conflict in the family setting.* Once you identify and understand the origin of your default response to third party conflict, which some of you may have already done, you will be better able to choose how you interact as a mediator and less likely to conform your behavior to an old way of relating to conflict.

For this journal assignment, write 3-4 pages in which you describe in detail the family conflict you believe most significantly influenced your approach to conflict. Describe also how you reacted to it, both in terms of your emotions and actions. Discuss also how this situation (or a series of other, similar ones) might have influenced your relationship to conflict and your mediation “style.”

*If you prefer not to write about a family experience, feel free to discuss your approach to conflict in another context.

Discuss your default mode of listening. What have you learned about that mode as a result of the instruction on empathy and listening?

What was your attitude toward empathy before you participated in the small training group exercise? How as your attitude affected by the exercise?

What did you learn about empathy during the part of the exercise when someone empathized with you? If the listener misunderstood you, how did it affect you? What effect did empathy have on your ability to resolve your problem?

What did you learn about yourself when you were the listener, either in the small group exercise or when you practiced empathy outside of class?

Journal 3 – Your Emotional Footprint
Optional
Due: Any day before January 13

• Are you aware of what you are feeling moment to moment?
• What are your beliefs about emotion?
• Which feelings are okay for you to have and express, and which are not?
• What is your family history with emotional expression?
• What cultural and gender-based messages have influenced your emotional expression?

Journal 5 - Styles of Mediation
Optional
Due: Anytime before January 14

Do you believe that as a mediator you are leaning toward a mediation style? If so, what is it? What do you think are its greatest attributes? Give an example or two of something you might do that would illustrate your stylistic preference. How will this approach impact the mediation?

If you are not leaning toward a mediation style, then we must assume you have a balanced approach or one that varies with circumstances. If this describes you, please indicate what sorts of behaviors or occasions in the mediation would cause you to shift styles.

Finally, when, if ever, would it be appropriate, in your view, to take a transformative approach to mediation? If the answer is "never," justify that stance.

Journal 6 - Race, Gender & Culture
Optional
Due: January 7
You are a member of a faculty committee formed for the purpose of designing the Mediation Seminar curriculum. The committee is considering whether to include a unit on culture and gender. The chair has asked you to draft a memo addressing this issue for distribution to the other committee members. At a minimum, you are to address the following questions:

    1. Why should/shouldn’t the course include gender and culture?

    2. Assuming you recommend inclusion of this subject

        a. What do you propose the course goals be?

        b. What methodology would you suggest?

        c. What guidelines should the instructor follow in designing and implementing the unit?

        d. What problems might you anticipate, and how do you propose the instructor address them?

Journal 7
Optional
Due: January 12
Assume you are the mediator in the hypothetical situation described below. After you have read the hypothetical, complete the steps I suggest for ethical decisionmaking listed below and discuss how you would prevent, resolve or eliminate the ethical problem and the reasons supporting your decisions.

1. Educate yourself - know values and norms. Consult the Minimum Standards of Conduct for Mediators.
2. Prevent the problem.
3. Become aware of the problem. *
4. Eliminate the ethical decision.
5. Identify your options.*
6. Choose an option.*
7. Identify relevant values/rules/standards.
8. Apply a balancing test.
9. Make a decision.

Journal 8: Topic of your choice
Optional
Due: Anytime before January 13

Journal 9 - Race, Gender & Culture
Optional
Due: January 12
Choose from among the following topics:

1. Write about an instance in your life in which prejudice or bias made it difficult for you or someone else to accomplish a task or have a successful outcome to a problem solving process. How did the bias manifest? Itself? What did you (or anyone else) do? Would you handle it differently now? If so, how?
2. Was there anything in any of the readings or the exercise for this lesson that triggered issues for you? How so? Can you apply any of the reading material to your own life and the negotiations and mediations in which you participate? How?
3. What role do race, culture, gender, religion and other immutable characteristics play in negotiation? What role do they play in mediation? Please contrast the two.

a. Following any role play, write about the three most important lessons you learned. For each learning point, discuss:

• What you learned;
• How and/or from whom you learned it;
• Why it was important; and
• How you will apply the lesson in subsequent mediations, in your future work (as a lawyer representing clients in mediation or in business) or in your personal life.

b. Following any role play in which you played mediator, reflect on your experience as mediator and address the following:

• What strengths did you bring to the mediation that did not require much thought on your part – unconscious competencies? How did they influence the mediation?
• What competencies did you employ intentionally? How successful were you and why? How did you know you were successful?
• What would you not repeat, given another opportunity? Why? What would you change as mediator? Why?

1. Make time and space
2. Slow down
3. Recall

a. Mediation session:
b. Specific mediation experience:
4. Observe
   a. What happened that resulted in your discomfort, upset, judgment – or your feelings of success and doing good work?
   b. Watch for times when you focused on an exoteric (outer-directed) aspect of the situation and lost awareness of your esoteric (inner-directed) experience? c. How did your clarity or lack of clarity impact on your ability to be present? d. What occurred during this “Gap of Mindfulness”?
5. Reflect
6. Record

The learning objectives of the book reviews are:

1. To explore diverse approaches to mediation;
2. To think critically about the mediation process, particularly the theoretical, moral, ethical or policy implications; and
3. To develop an analytical framework for understanding a mediator's approach and selecting a mediator appropriate to a particular dispute.

Instructions for Book Reviews:

1. Select one of the mediation-related books from the attached list to review and discuss with the class. Books are available for the Mediation Seminar at the library to check out over break or on one week reserve during J-Term or in some cases to check out from the Gould Center library. Please see AnaMaria Ponce if you would like to check out a Gould book over break.
2. Submit a two-page written review, which includes:
   b. A written summary of the main points of the book (you will also copy this to distribute to the class as part of your oral presentation);
   c. Your critique of the book; and
   d. How the book was useful to you, in either understanding the theory of mediation or in giving you practice tips.
3. Be prepared to participate in an informal discussion about the book the last day of class. No special preparation is necessary.

Mediation Statement
Due: The day before the mediation in which you play a lawyer give copies to me and your opposing counsel.
You will write a mediation statement to provide to the mediator and the other lawyer and party for the mediation in which you play the role of lawyers. The purpose of the mediation statement is to educate the mediator and the other party about your client’s perspective on the dispute. The statement can be in the form of a letter or a legal brief and should include the following:

1. A brief summary of the factual background;
2. A brief summary of the procedural background;
3. A statement of legal issues and arguments;
4. An analysis of damages;
5. The settlement history;
6. A statement of your client’s interests, needs, concerns and priorities regarding settlement;
7. A statement of what you believe to be the interests, needs, concerns and priorities of the other party; and
8. A description of any obstacles to settlement you anticipate and proposals for overcoming them.

XIV. OFFICE HOURS
If you would like to consult with me privately, I will be available before class from 8:30 a.m. and after class by appointment. After J-Term ends, I am happy to meet with you at my office in Sausalito by appointment.

XV. COURSE SCHEDULE
Please note: the schedule is different from the one described in the Course Description.

CLASS 1
JANUARY 3
9:00 – 4:00

Introductions
Overview of the Course

• Schedule
• Methodology
• Assignments

Introduction to Mediation

• Med-arb exercise and debrief, Robbie & Dawn//Don
• The mediation model, phase by phase

Mediation as Facilitated Negotiation
Communication Skills for the Mediator: Listening and Reframing
Managing Conflict
Emotional Literacy and Reflective Practice

Required Reading:

• Difficult Conversations, entire text
• Golann, “Introduction to Mediation”
• Bowling and Hoffman, “Bringing Peace into the Room”
• Curtis, “Reconciliation and the Role of Empathy”
• Bryant, “Reframing”
• Johnson, Levine & Richard, “Emotionally Intelligent Mediation: Four Key Competencies”
• Moore, “Impasse – and What to Do about It”
• Curtis, Benefits of Conflict

• Argrys, “Teaching Smart People How to Learn”
• Bush, “What Do We Need a Mediator for?: Mediation’s ‘Value-Added’ for Negotiators”
• Mnookin, “The Tension between Empathy and Assertiveness”
• Bowling, “Mindfulness Meditation and Mediation: Where the Transcendent Meets the Familiar”*

*Daniel Bowling will be our guest on January 3. I have assigned several readings from his book Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution. If you have the time and interest I recommend you read the entire book, a compilation of essays by well-respected, very experienced mediators.

Confidentiality
Models of Mediation
Facilitative Model Phase by Phase
Coached Mediation Role Plays (without lawyers): Robbie & Jackie and Mikki and Maude
Introduction to Representing Clients in Mediation

• Interviewing the client
• Preparing yourself for mediation
• Preparing the client for mediation
• The mediation statement

Required Reading:

• Foxgate v. Bramalea (students 1-8)
• Rojas v. Superior Court Bramalea (students 9-18)
• Riskin, “Decisionmaking In Mediation: The New Old Grid and the New New Grid System”
• Bush, “Efficiency and Protection, or Empowerment and Recognition: The Mediator’s Role and Ethical Standards in Mediation”
• Guthrie, “The Lawyers Philosophical Map and the Disputant’s Perceptual Map: Impediments to Facilitative Mediation and Lawyering”
• Binder, Lawyers as Counselors, First Edition, Chapter 3
• Meyer, “Making the Transition from Advocacy to Resolution”
• Abramson, “Pre-Mediation Submissions”

Recommended Reading:

• Barnum, “One Step Forward, Two Steps Back: Another Look at Foxgate”
• Rojas v. Superior Court Amicus Curiae Briefs of Ron Kelly and SCMA
• Alfini, “Thrashing, Bashing and Trashing It Out: Is This the End of Good Mediation?”
• Riskin, “Mediator Orientations, Strategies and Techniques”
• Curtis, “Getting More for the Plaintiff in Mediation: Showcasing the Stellar Client”

CLASS 3
JANUARY 5
9:00 – 4:00

Preparation for Coached Role Plays with Lawyers

• Role of law
• Caucusing
• Working with lawyers

Lawyer-Client Interviews: Dash v. Gazette, Beskind v. True Savings, Dangerfield v. San Perino
Pre-Mediation Issues
Pre-mediation Phone Conferences: Dash v. Gazette, Beskind v. True Savings, Dangerfield v. San Perino
Lawyer-Client Preparation Meetings: Dash v. Gazette, Beskind v. True Savings, Dangerfield v. San Perino
Representing Clients in Mediation, panel of guest lawyers

Required Reading:

• Guthrie, “The Lawyer’s Philosophical Map and the Disputant’s Perceptual Map: Impediments to Facilitative Mediation and Lawyering”
• Meyer, “Making the Transition from Advocacy to Resolution”
• Arnold, “Twenty Common Errors in Mediation Advocacy -In No Particular Order”
• Alfini, Press, Sternlight and Stulberg, “The Separate Session” (Caucus)

Recommended Reading:

• Love, “The Top Ten Reasons Why Mediators Should Not Evaluate”
• Hoffer, “Risk Analysis, the Mediator’s Tool”

CLASS 4
JANUARY 6
9:00 – 4:00

Coached Mediation Role Plays
Debrief of Role Plays

Assignment

• Hand in Mid-Course Evaluation

CLASS 5
JANUARY 7
9:00 – 4:00

Mid-course Evaluation
Coached Mediation Role Plays
Debrief of Role Plays

NO CLASS
JANUARY 10

CLASS 6
JANUARY 11
9:00 – 6:00

Mediation Ethics and Standards
Culture and Gender in Mediation
Systems Design
Multiparty Mediation
Facilitation

Required Reading:

• 2004 California Rules of Court Minimum Standards of Conduct for Mediators in Court-Connected Mediation Programs for General Civil Cases
• Grillo, “The Mediation Alternative: Process Dangers for Women”
• Tannen, “The Power of Talk: Who Gets Heard and Why”
• Gunning, “Diversity Issues in Mediation: Controlling Negative Cultural Myths”
• Martinez, “Short Guide to Facilitation”
• Susskind, “An Alternative to Robert’s Rules of Order for Groups, Organizations, and Ad Hoc Assemblies That Want to Operate by Consensus”

CLASS 7
JANUARY 12
9:00 – 6:00

Multiparty Climate Change Negotiation (with Advanced Negotiation class)

CLASS 8
JANUARY 13
9:00 – 4:00

Multiparty Climate Change Negotiation (with Advanced Negotiation class)

CLASS 10
JANUARY 14
9:00 – 4:00

Mediation and the Courts
The Dark Side of Mediation
Settlement Conferences
Course Review and Closing
Evaluations

Required Reading:

• Toker, “Court Connected Mediation, Governing Law”
• Kichaven and Rothman, “Lawyers Speak Out on Justifying Court Mediation”
• Welsh, “The Place of Court-Connected Mediation in a Democratic Justice System”
• Hensler, “Suppose It’s Not True: Challenging Mediation Ideology”

Recommended Reading:

• Hermann, LaFree, Rack and West, “An Empirical Study of the Effects of Race and Gender on Small Claims Adjudication and Mediation”
• McEwen & Wissler, “Finding Out If It Is True: Comparing Mediation and Negotiation through Research”

MEDIATION BOOKS

Bowling and Hoffman, Bringing Peace into the Room
A collection of articles about the effect of a mediator qualities on the mediation process.

Bush and Folger, The Promise of Mediation
Details the philosophy and practice of transformative mediation, which focuses on empowerment and recognition by encouraging parties to use the conflict to realize and actualize their inherent capacities both for strength of self and for relating to others.

Cloke, Mediating Dangerously
An approach to mediation that provides a clear theoretical ground for conflict resolution and encourages the mediator to take risks to help the parties resolve conflict at the highest level.

Cloke and Goldsmith, Resolving Conflicts at Work
A guide for approaching relationships and conflicts at work.

Cloke and Goldsmith, Resolving Personal and Organizational Conflict: Stories of Transformation & Forgiveness
The authors describe the approach and value of working with the disputants’ narrative structure in resolving conflict. They present interesting case studies to illustrate their theoretical and practical approach.

Cooley, Mediation Advocacy
Comprehensive, practice-oriented guide to mediation advocacy.

Cooley, The Mediator’s Handbook
Comprehensive, practice-oriented guide to mediation, focusing largely on the "external" aspects of mediation practice.

Ellison, Taking the War Out of Our Words
The author outlines six basic conflict communication patterns – self-betrayal, avoidance, excuses, sabotage, vindictiveness, blame - and proposes a non-defensive communications approach that combines honesty and vulnerability.

Friedman, A Guide to Divorce Mediation
Excellent introduction to face-to-face mediation and numerous divorce mediation case studies.

Greenberg, Barton and McGuinnes, Words over War: Mediation and Arbitration to Prevent Deadly Conflict
This book collects twelve case studies representing a range of difficult issues currently facing the international community and dispute resolution scholars. Divided into three sections – Separation of Nations, Integration of Nations and Intermediation in Non-civil Conflicts.

Kolb & Associates, When Talk Works: Profiles of Mediators
Covering broad subject matter ground, each chapter describes a prominent mediator’s approach.

Le Baron, Michelle, Bridging Troubled Waters: Conflict Resolution from the Heart
An approach to mediation that emphasizes the importance of the mediator’s vision, imagination, empathy and genuineness, as well as her spiritual aspects.

Lovenheim, Peter, Becoming a Mediator: An insider’s Guide to Exploring Careers in Mediation
Advice and information for readers who are interested in mediation as a profession.

Patton, Stone and Heen, Difficult Conversations
An approach to communication that allows parties to conflict to take responsibility for their own part and engage the other in problem solving conversation.

LeBaron, Michelle, Bridging Troubled Waters: Conflict Resolution from the Heart
Focusing on the human and relationships aspects of conflict, this approach stresses the importance of creativity and the mediator’s intuition and courage in helping parties resolve their disputes.

Lang and Taylor, The Making of a Mediator: Developing Artistry in Practice
Beyond the mediation basics, this book focuses on a mediator's professional development, particularly methods of self-reflection or reflective practice.

Mayer, The Dynamics of Conflict Resolution: A Practitioner’s Guide
Goes beyond tools and techniques by focusing on a framework for understanding and working conflict itself.

Mitchell, Making Peace
Behind-the-scenes account of the Northern Ireland Peace Accord negotiations, which George Mitchell mediated.

Moore, Mediation
A mediation classic, this book provides a solid overview of the mediation process, of conflict and the role of the mediator.

Rosenberg, Nonviolent Communication: A Language of Compassion
Tools and exercises for remaining compassionate and connected in all situations, particularly difficult and conflicted ones.

Rothman, Resolving Identity-Based Conflict in Nations, Organizations and Communities
An analysis of deep-seeded, long-standing conflicts and methods for transforming them by helping adversaries learn that they may fulfill their deepest needs only with the cooperation of those who mist vigorously oppose them.

Ury, The Third Side
Ury takes the principles he and Fisher developed in Getting to Yes and Getting Past No to the next step: changing the culture of conflict so that even the most serious disputes can be handled on the basis of mutual interest and coexistence, rather than force and coercion.

Slaikeu and Hasson, Controlling the Costs of Conflict: How to Design a System for Your Organization
Guides organizations in assessing conflict within the organization and turning it into a constructive and creative opportunity.

Winslade and Monk, Narrative Mediation: A New Approach to Conflict Resolution
Innovative approach to mediation using techniques of narrative therapy, in which parties are encouraged to tell their personal “stories” of the conflict and reach resolution through understanding of the context of their individual stories.

Copyright 2006 Dana Curtis. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.