Prof. C. Menkel-Meadow
Fellows Peter Reilly and Palma Strand
(Ph. 662-9789) (Ph. 662-9788) Off. 471

Negotiation and Mediation Fall 2002, LAWJ317-08
Monday and Wednesday, 11:10 am-12:35 pm, Rooms 205 (437, 492)
Office 404, ph. 662-9379/ e-mail

Course Description

This course is designed to teach you the theory and practice of negotiation and mediation (as facilitated negotiation) by exposing you to both conceptual and behavioral forms of learning. Every lawyer negotiates, whether in dispute resolution (litigation) or transactional and planning contexts. Many do so without understanding why they do what they do or how they actually behave during a negotiation. In this course we hope to give you some theoretical models and frameworks to guide your conceptualization of the negotiation process in particular contexts, as well as to help you understand how your own behavior may or may not be congruent with the analytical choices you think you have made. Most importantly, we hope to teach you how to be aware of your own negotiation processes, both in terms of how you conceptualize a negotiation “problem” and how you behave when negotiating. In addition, we hope to help you see how lawyer-client interactions structure the negotiation choices you have. Our goals in this course include teaching you how to continue to evaluate your own negotiating work so that when you leave this course you will always be reflective and evaluative about what you are doing.

You will be required to read, write, discuss and perform. Unlike many law school courses, this one will require you to apply what you have read immediately, by asking you to think about and plan an approach to solving a negotiation problem and then to act on your plans. Because negotiation is an interactive process, you will frequently have to adjust your analysis and behavior, based on what other parties (and your own client) may do. Thus, this course will teach you to act, as well as, think like a lawyer. We will also teach you how to give feedback to each other and to yourself. Being criticized for one’s behavior as well as for one’s thinking is often quite threatening, but if done well, it is the best way to learn and this may be one of the last opportunities for you to get “free” feedback on how you are perceived by others. In short, whether or not you actually practice law, this course should help you live your life, no matter what you do.

Many people act from assumptions about what is at stake in a negotiation, what the other side wants or is like and what they think they can do to “win.” We will learn to look at and question those assumptions. If this course is successful it will teach you to think about every negotiation as an opportunity to solve a problem that exists or create new value where there was none or try to make a bad situation a bit better (making lemonade out of lemons, as a wise person once said to me!). We hope to enhance your ability to think creatively and synthetically as well as analytically. You will also learn that planning is essential and can sometimes make up for your novice status as a new legal negotiator. And, you will learn that “people” skills may be just as important as technical skills. The skills you will learn include analysis, persuasion, creativity, listening, interviewing, counseling, question-framing, and the use of law and legal principle. We will also explore the moral and ethical issues implicated in negotiation--honesty, integrity, character, reputation and personal identity.

We will also try to introduce you to the many ways in which the basic processes of mediation and negotiation have been used to develop new forms of dispute resolution in both the public sector (in courts) and in the private sector (mini-trials, med-arb, structured dispute resolution systems) and we will try to explore some of the difficult policy issues that have emerged.

In short, we want you to develop the “micro” skills necessary to be effective negotiators at the same time that you develop a “macro” consciousness about the uses to which your skills will be put.

This is a lot to do in a relatively short time, so we require your commitment and welcome your comments, reactions and suggestions.

Course Objectives:

1. Understand conceptual and analytic models of negotiation, drawn from behavioral sciences,
game theory, decision sciences and legal studies.

2. Understand how to analyze aspects of a negotiation problem to know which models are appropriate in which contexts.

3. Learn how to plan for a legal negotiation, considering needs, interests, objectives of one’s own client and the needs, interests and objectives of other parties to the negotiation or others
affected by the negotiation.

4. Learn how to “create value” and “solve problems” in both dispute and transactional negotiation settings.

5. Consider what the “role of law” is in negotiated legal problem solving.

6. Learn to understand and plan for the strategic behaviors of different models of negotiation to
effectively implement appropriate behaviors for particular kinds of negotiation.

7. Learn to appreciate and plan around common “barriers” to negotiated agreements in human cognition and behavioral errors or misperceptions.

8. Learn to communicate effectively with others (clients, principals, other negotiators, colleagues)

9. Consider the ethics of negotiation and make “ethically effective and appropriate” choices.

10. Consider and appreciate the role of culture, values, personality, race, class, gender and other “differences” in negotiation choices.

11.Understand the differences in dyadic (2 person) negotiations and multi-party negotiation and
dispute resolution processes.

12. Consider negotiation processes as “foundational” models and skill sets for other dispute
resolution processes, like mediation, consensus building, etc.

13. Develop your own capacity to reflect on, learn from and critique your own performances and experience for future learning.

14. Consider the policy issues in the use of negotiation and related dispute resolution processes
for resolving disputes and planning transactions.

Course Requirements

1. Attendance
Because you will be playing roles as clients and lawyers and the learning of the whole class depends on it, attendance is mandatory for all sessions. Absence, for any reason, must be approved by the instructors.

2. Readings
The required course books are Fisher, Ury and Patton, Getting to Yes (2d ed. Penguin Press, 1991); Robert Mnookin, Scott Peppet and Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Harvard-Belknap Press, 2000); and Howard Raiffa, The Art and Science of Negotiation (Harvard Univ. Press); and strongly recommended (and available in the bookstore) is Kenneth Arrow, Robert Mnookin, Lee Ross, Amos Tversky and Robert Wilson, (eds), Barriers to Conflict Resolution (W.W. Norton, 1995), all available from the bookstore, and also required is a book of readings, edited by me, Materials in Legal Negotiation and Mediation, available from the Distribution Center. There are several other recommended books for those of you who are really interested in pursuing this subject, which will be on reserve in the library. The recommended books are David Lax and James Sebenius, The Manager as Negotiator, Robert Axelrod, The Evolution of Cooperation, William Ury, Getting Past No, Gerald Williams, Legal Negotiation and Settlement, Rubin & Brown, The Social Psychology of Bargaining, Kolb and Williams, The Shadow Negotiation and others.

The literature on negotiation and mediation is now vast. I will be happy to make bibliographic suggestions as you request them, either during work on particular negotiation problems or as you complete your paper assignments. There are also several important journals you might want to become familiar with including Negotiation Journal, Conflict Resolution Quarterly, Ohio State J of Disp. Res., the Journal of Dispute Resolution (Missouri-Columbia), Alternatives to the High Cost of Litigation (CPR Institute for Dispute Resolution) and the Harvard Negotiation Law Review. All of these should be available in the library.

3. Written Assignments
There will be short written assignments at least once a week, including guided reflections pieces, legal memos, negotiation plans, negotiation agreements, analyses and self-critiques of negotiation exercises, etc. All assignments are due on the date specified--no extensions will be permitted without instructor approval and you will be penalized for any late papers.

4. Video-taped Negotiations
At several points in the semester you will conduct negotiations that will be videotaped and critiqued by yourself, other students and the instructors. These will usually occur outside of class time and will consist of two hour sessions. You will be asked to submit schedules of out of class time availability for these sessions. You will be “representing” real clients, played by various people (other than yourselves). Your “clients” will have to agree to any settlement you work out and will provide some feedback on how they experienced you as their lawyer.

5. Final Paper
You should submit a final paper (about 10-15 pages in length) that will be due at the end of the examination period. This paper can be on any topic of your choice and our approval. You may choose to analyze a negotiation, mediation or dispute resolution problem that you have participated in or observed, an international, domestic or legal problem that you would like to analyze from a dispute resolution perspective or you may write a critique of some existing literature or do a small research project in the area of dispute resolution, negotiation or mediation. You may also write a negotiation problem, which includes writing facts, instructions for all parties, a legal memo discussing the applicable law and a teacher’s guide, discussing the goals and purposes of the negotiation exercise. You should discuss all writing projects with me. There is no final examination in this course.

6. Grading
The grade for this course will be based on the quality of your written work and your participation in the negotiation exercises. Grades will not be based on competitive grounds of the “results” of outcomes of your negotiations. Your grade will be based on your ability to think creatively and to come up with good and wise solutions to the legal and other problems you are being asked to solve. We want to encourage you to take risks and experiment with your own thinking and behavior and we don’t want grading to inhibit that activity. Your preparation, commitment, insight and improvement during the duration of the course will count in your final grade. You will receive comments and some indication of progress on your assignments. Note that you will have many interim “grades” on the multiple assignments in this course.

7. Confidentiality
Many of the problems depend on confidential instructions. Much of the time you will work with a partner and often you will work in larger groups working on the same side of a case or transaction. It is important that you not share instructions about a problem until you are told you can do so by the instructors (following the de-briefing of an exercise). Your honesty, integrity and ethical conduct here will not only count in your grade but in how you are seen by your peers, as well as by your instructors. If you have any questions about the confidentiality of any facts, ask us.

Course Schedule

Date Topic & Reading Assignment Exercise
W Sept. 4 Introduction and Overview
What do we know about negotiation?
  Fisher, Ury and Patton, xvi-xix
  Mnookin p. 1-8
M Sept. 9 Model of Negotiation: Learning Agendas
First Principles of Dyadic Negotiation with clients
Role of clients/advocates
  Mnookin pp. 69-91
  Menkel-Meadow, readings # 1- pp. 1-15
Walker dist.
W Sept. 11 Sept. 11 Commemoration: Methods of Conflict
  Lederach (distributed)
M Sept. 16 Evaluating Negotiations: Process and Outcomes Walker due
W Sept. 18 Introduction to Models of Negotiation #1
  Raiffa 33-65
  Meltsner & Schrag (Materials # 2)
  Menkel-Meadow (Materials # 1 p.1-40 )
  Mnookin pp. 93-118


Klare distr.
M Sept. 23 Models of Negotiation-#2 Principled Negotiation
  Role of Law
  Mnookin & Kornhauser (Materials # 7)
  Fisher, Ury and Patton, pp. 1-94
  Elster, Ch. 12 in Arrow et. Al.
W Sept. 25 Models of Negotiation #3 Problem Solving
  Menkel-Meadow (Materials # 2) pp. 40-end
  Hofstadter (Materials # 4)
  Mnookin, pp. 173-177; 204-223
M Sept. 30 Models of Negotiation #4 Mixed Models
  Creating and Claiming Value
  Lax & Sebenius (Materials # 3
  Mnookin, pp.11-43l 119-126

  Optional: Axelrod, Chaps 1 and 2
  Williams p. 15-70 (on reserve)
Klare Due

W Oct. 2 Stages and Phases of Negotiation
  Williams (on reserve) p. 70-89
  Menkel-Meadow (Materials # 5)

Rapid distr.
M Oct. 7 Planning for Negotiation--Client’s Role
  Binder, Price and Bergman (Materials # 9)
  Mnookin, pp. 178-203
  Lehman (Materials # 8)

Litigation-Neg. Distr.
W Oct. 9 Planning Solutions with Client: Law & Solutions
  Fisher & Ury Ch. 4
  Kelley (Materials # 10)
  Menkel-Meadow (Materials # 11)
Creativity Exercises
Tu Oct. 15* Litigation Negotiation Planning
  Mnookin pp. 224-248
*(instead of Mon. Oct. 14-Columbus Day)

Meet with clients
W Oct. 16 Negotiation Simulation # 1 Lit.-Neg. Prob.
Tu Oct. 22 Video tape and critique Planning Memo Due
W Oct. 23 Review and Debrief- Litigation Negotiation Agreement Due
M Oct. 28 Role of Context in Negotiation Choices
  Menkel-Meadow (Materials # 6)
  Mnookin pp. 156-172
  Menkel-Meadow (Materials #3)
W Oct. 30 Barriers to Negotiated Settlements
  Ross, Ch. 2; Mnookin & Ross, Ch. 1;
  In Arrow et. Al.
  Mnookin, pp. 156- 172
M Nov. 4 The Ethics of Negotiating
  White (Materials # 12)
  Shell (Materials # 13)
  Mnookin, pp. 274-294
Valdez v. Alloway

W Nov. 6 The Psychological and Social Dimension
  Personality, Gender, Culture
  Gilkey & Greenhalgh (Materials # 14)
  Kolb & Williams (Materials # 17)
  Kim & Smith (Materials # 15)
  Ayres (Materials # 16)
  Avruch (Materials # 18)
  Mnookin, pp. 44-68
  Fisher & Ury pp. 95-143
M Nov. 11 Information Issues: Getting, Giving and Processing
  Mnookin pp. 127-155; 249-271
  Arrow, Ch. 13 in Arrow

Trans. Prob. Dist.
W Nov. 13 Planning for Transactional Negotiation  
M Nov. 18 Transactional Planning Client Meetings
W Nov. 20 Transactional Negotiation Simulation  
Tu Nov. 26 Videotape and critique  
W Nov. 27 No class–Thanksgiving Recess  
M Dec 2 Debrief Transactional Negotiation
  Introduction to Mediation as Facilitated

  Thompson (Materials # 19)
  Mnookin, pp. 295-314
  Friedman and Himmelstein (Materials # 20)
Agreements Due

W Dec. 4 Role of Law and Conflict in Mediation: Problem Solving
In Negotiation and Mediation: Course Summary and Evaluation
Menkel-Meadow (Materials # 21 and 22)

Please note that this schedule is subject to change, given our pace, snow and other conditions beyond our control. You must come to class to learn about the assignment for each class.

Final Papers are due on the last day of exams but the earlier they are turned in, the more feedback you will get.

Copyright 2004 Carrie Menkel-Meadow. 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.