Mediation/Advanced Negotiation (Law 7010-1)
Spring 2005, Wednesday and Thursday: 9:30 - 10:55 am, Room 107
Professor Jim Holbrook; Office: Room 230; 585-9693; holbrookj@law.utah.edu

Goals, Methods & Grades

Course Goals Negotiation and mediation are integral parts of the practice of law for both litigators and transactional lawyers. Negotiation is a learning conversation in which parties attempt to: (Q1) create or repair a relationship; (Q2) create a deal or resolve a dispute; (Q3) exchange value; and/or (Q4) take or explain a position. Mediation is facilitated negotiation in which a neutral third person—the mediator—helps parties find a mutually acceptable resolution of a dispute.  In this course we will study transformative, integrative, distributive, and performative negotiation contexts and theories and you will learn and practice related negotiation skills. We will study and explore your personal preferences in conflict resolution and conflict communication. You will study and practice mediation advocacy and learn how to effectively represent clients in mediation and you will learn and practice mediator skills. We also will study ethical and public policy issues concerning negotiation and mediation.

Clinical or Other Practical Experience Because negotiation and mediation skills and insights are best acquired through hands-on experience, it is ideal if you can participate in the Mediation Clinic to observe and practice these skills.  Otherwise, you will be required to observe and analyze other negotiations and mediations.

Instruction and Assessment The Difficult Conversations text provides a theoretical framework and guidelines for successful high-conflict communication in negotiation and mediation. The Beyond Winning text provides a theoretical framework and practical suggestions for successfully representing clients in negotiation and mediation. The Smart Choices text provides a theoretical framework and powerful practical model for decision making used in both negotiation mediation. The course also covers the procedural framework and guidelines for conducting mediation and employing the basic mediator skills of initiating mediation, asking questions, brainstorming, caucusing, analyzing risks, overcoming impasses, and providing closure. During class we will watch videotaped negotiation and mediation demonstrations, engage in role playing exercises, and debrief these role plays.

It is important that you understand your individual style, strengths and preferences as a negotiator and mediator. Accordingly, you will audiotape, transcribe, and analyze the communication skills you demonstrate in a high-conflict conversation.  You also will be videotaped negotiating a mock dispute that provides opportunities for using transformative, integrative, distributive, and performative negotiation skills.  These videotapes will be individually critiqued and graded.  You will submit the following short (5-page) papers:  a written outline of your preparation for the videotaped negotiation; an agreement from the videotaped negotiation; a paper on reciprocity and trust building; and a consequences table discussed in the Smart Choices text.  You will submit a substantial (10-page or longer) final paper critically analyzing the mediator’s strategies and skills demonstrated either in an actual mediation you conducted or observed or in a videotaped mediation I will provide.  If you take the Mediation Clinic during Summer 2005 or Fall Semester 2005, you should write your final paper about your observations and experiences in your clinic and submit the paper at that time.

GradesGrades will be based upon: your audiotaped conversation analysis; the reciprocity and trust building paper; the videotaped negotiation, written preparation, and settlement agreement; the table of consequences paper; and the final mediation analysis paper as follows:

Classroom participation and preparation for in-class assignments also may be considered when determining your grade.  Unexcused absences will be taken into account.  If you must be absent, please leave an email, voicemail, or written message for me.

Required Texts

Douglas Stone, Bruce Patton, and Sheila Heen, Difficult Conversations: How to Discuss What Matters Most (New York, NY: Penguin Books, 1999)

Robert H. Mnookin, Scott R. Peppet, and Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Cambridge, MA: The Belknap Press of the Harvard University Press, 2000)

John S. Hammond, Ralph L. Keeney, and Howard Raiffa, Smart Choices: A Practical Guide to Making Better Decisions (Boston, MA: The Harvard Business School Press, 1999)

Handouts and role plays will be distributed; additional assigned readings will be on reserve.

Contact:
Prof. Jim Holbrook – Call or stop by most days
Room 230, S.J. Quinney College of Law
Telephone:  585-9693 (days) or 539-0622 (evenings)
E-mail:  holbrookj@law.utah.edu

Disabilities AccommodationsThe University of Utah seeks to provide equal access to its programs, services and activities for people with disabilities.  If you will need accommodations in this class, reasonable prior notice needs to be given to Barbara Dickey, Associate Dean of Student Affairs, and to the Center for Disability Services (CDS) to make arrangements for accommodations.  CDS is located at 200 South Central Campus Drive (Union Building), Room 162, or you can call 801-581-5020.  All written information in this course can be made available in an alternative format with reasonable prior notification.


Mediation/Advanced Negotiation (Law 7010-1)
Spring 2005, Wednesday and Thursday: 9:30 - 10:45 am, Room 107
Professor Jim Holbrook; Office: Room 230; 585-9693; holbrookj@law.utah.edu

Date

Class Topic

Discussion/Exercise/Video

Assigned Readings

1/12

Introduction to course; concerns for relationship vs. outcome: four kinds of conflict resolution

Discuss  4-quadrant analysis; discuss the communication/outcome/process  triangle

1/13

Negotiation self-evaluation; conflict communication preferences; conflict and childhood experience; the HNP-7 elements

Assign “Difficult Conversation” exercise; deconstruct a past negotiation using  the 7 HNP elements

DC: xv-43

1/19

Using the HNP-7 elements to prepare for and diagnose a negotiation; competition vs. cooperation

Prepare for, show and discuss the “Jockey” negotiation video; do “Win as Much as You Can”

DC: 44-82

1/20

ADR comparisons; understanding conflict stories; Q4 performative negotiation and mediation

Show “Prosando” joint session; do “conflict story” exercise; do “Biting Dog” negotiation

DC: 83-128

1/26

Q4 performative negotiation and mediation; dealing with an angry public

Discuss traditional approaches to conflict; discuss C3R3 principles; handout “The Biography” conversation roles

DC: 129-162

1/27

Understanding the “What Happened?” conversation; inferences; contribution; using curiosity to ask questions

Do “Ladder of Inference” exercise; do “The Biography” conversation

“The Biography” handout

2/2

Q1 transformative negotiation and mediation; “Feelings” and “Identity” conversations; good listening skills

Do “Role Reversal” exercise;  do “Reflective Listening” exercise; do “Betrayal” exercise

DC: 163-200

2/3

Q1 transformative negotiation and mediation; reframing; empathy; reciprocity; forgiveness

Show “Sexual Boundaries” video; handout “Weathers and Evans” negotiation roles

DC: 201-248

2/9

Q2 integrative negotiation and mediation; interests; options

Schedule videotaped negotiations; do “Weathers and Evans” negotiation; handout “Great Burger Shootout” negotiation roles

BW: ix-91; “Weathers and Evans” handout

2/10

Q2 integrative negotiation and mediation;

Do “Sally Soprano” exercise; Do “Great Burger Shootout” negotiation; show “Restaurant” video

BW: 93-126; “Great Burger Shootout” handout

2/16

Q3 distributive negotiation and mediation; legitimacy

“Used car” negotiation; show “Personal Injury” mediation; handout roles for videotaped negotiation

BW: 127-172

2/17

Reframing Q3 distributive negotiation to Q2 negotiation

Show “Prosando” mediation: do “International Scout” negotiation

BW: 173-223

2/21-2/25

Videotaped negotiations

2/23

Defining and allocating risk; drafting a settlement agreement

Handout risk analysis exercise

BW: 224-248

2/24

Risk analysis; BATNAs; movement motivation; uncertainty and risk tolerance

Do risk analysis exercise

BW: 249-294; “Risk Analysis” handout

3/2

Dealing with difficult negotiators; negotiation ethics; building trust in negotiation and mediation

Assign “mediator’s opening remarks” exercise; handout agreement to mediate; mediator checklist; mediator standards

3/3

Mediator standards of conduct; agreements to mediate; mediator checklists; drafting and giving mediator’s opening remarks

Give mediator’s opening remarks

Agreement to mediate; mediator checklist; mediator standards handouts

3/9

Protecting, disclosing, and using confidential mediation information; parties’ code of conduct

Handout Utah ADR Act and URCADR

3/10

Court-annexed mediation in Utah; mediation advocacy; preparation for mediation; four kinds of mediation; selecting a mediator

Utah ADR Act and URCADR handouts

3/16

NO CLASS

SPRING BREAK

3/17

NO CLASS

SPRING BREAK

3/23

Stating the problem; identifying objectives

“Smart Choices” exercise; assign “Table of Consequences” paper

SC: vii-45

3/24

Alternatives; consequences; tradeoffs

Handout distributive mediation roles

SC: 47-108

3/30

Using risk analysis to motivate movement; overcoming impasse; “bad news” counseling

Do distributive mediation; handout “Avalanches” article

SC: 109-162

3/31

Linked decisions; traps; using tables of consequences and systems analysis

Do “mental traps” exercise; handout “Vanishing Trial;” handout MBA clauses; assign MBA exercise

SC: 163-242; “Avalanches” handout

4/6

The “Vanishing Trial,” exploding use of MBA; ADR counseling and drafting

Discuss “Vanishing Trials” and MBA; handout “Seasia” negotiation roles

“Vanishing Trial” and MBA handouts

4/7

Using “Six Kinds of Thinking” in conflict resolution; multi-party negotiation

Do “Seasia” negotiation; handout multi-party process materials

“Seasia” negotiation

4/13

Multi-party conflict resolution processes

Multi-party process handouts

4/14

LAST CLASS
ADR public policy issues

Assigned readings are from the following texts:

BW:    Robert H. Mnookin, Scott R. Peppet, and Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Cambridge, MA: The Belknap Press of the Harvard University Press, 2000)

DC:     Douglas Stone, Bruce Patton, and Sheila Heen, Difficult Conversations: How to Discuss What Matters Most (New York, NY: Penguin Books, 1999)

SC:     John S. Hammond, Ralph L. Keeney, and Howard Raiffa, Smart Choices: A Practical Guide to Making Better Decisions (Boston, MA: The Harvard Business School Press, 1999)

Handouts and role plays (to be distributed)

Additional readings and mediation video on reserve (to be assigned)

Contact:
Prof. Jim Holbrook
Office: Room 230, S.J. Quinney College of Law
Office hours: call or e-mail for appointment
Telephone: 585-9693 (days); 539-0622 (evenings)
E-mail: holbrookj@law.utah.edu


Copyright 2006 Jim Holbrook. 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.