Alternative Dispute Resolution
Professor Ware
Fall 2003


The required book is a Hornbook, Stephen J. Ware, Alternative Dispute Resolution (West Group 2001). Also required is a short photocopied supplement available at the law school bookstore.

A syllabus with the scheduled reading assignments is attached. Preparation for class and participation during class are crucial in this course. Your classroom performance throughout the semester counts for 20% of your grade in the course.

There is no exam in this course. Instead, there will be exercises (in which you will often be assigned a role in a hypothetical fact situation) and written assignments related to these exercises. While some of the exercises may be non-graded, most will be graded. Graded exercises and related written assignments count for 80% of your grade in the course.

Failure to participate in an exercise (for any reason) results in no credit for that exercise. Arriving late to class (for any reason) on the day of an exercise may prevent participation in the exercise and the related written assignment. All exercises and related written assignments must be completed on time. There will be no rescheduling, “make-ups,” or partial credit for late work, regardless of the reason.

I encourage you to use computers in class. Please do not bring phones, beepers, or other electronic devices into class unless you have silenced them. Do not bring audio recorders into class.

The staff of Services for Students with Disabilities, 135 Strong, 864-2620, coordinates accommodations and services for KU students. If you have a disability for which you may request accommodation in KU classes and have not contacted them, please do as soon as possible. Please also see me privately in regard to this course.

My office is 405, my phone number is (785) 864-9209, and my e-mail is ware@ku.edu. Please do not hesitate to contact me about this course or anything else.


Negotiation and Mediation Exercises

In negotiation and mediation exercises you will be assigned a role in a hypothetical fact situation. Participants in the exercise will be given a fact sheet. Sometimes the same fact sheet is given to all participants. Other times each role in the exercise gets confidential facts and the student playing that role can choose whether to keep any or all of these facts confidential. During an exercise, you may not communicate with anyone other than the student(s) with whom you are doing the exercise. You must be especially careful not to overhear other students doing the same exercise. For Honor Code purposes and otherwise, the exercises in this course are the equivalent of exams in other law school courses.

After most negotiation and mediation exercises, your assignment will be to complete a written summary of the exercise. Instructions for the summaries are on the following page.

Your grade for a negotiation or mediation exercise will be based on your written summary and the result of the exercise. For most exercises, a maximum of six points is possible: three for the summary and three for the result of the exercise. The “result of the exercise” is whether you reached an agreement and, if so, the terms of that agreement. The more the agreement advances the interests of you or your client, the more points you get. If you do not reach an agreement, your “result” points are determined by rolling two dice in front of the class:
 

Dice Plaintiff’s Points Defendant’s Points
2-5 0 3
6 1 2
7 (roll again)  
8 2 1
9-12  3 0

Instead of or in addition to the summary, there may be other graded written assignments in connection with some negotiation and mediation exercises.

Summaries of Negotiation and Mediation Exercises

Each exercise summary should be 2 or 3 double-sided typed pages. It must be stapled to a photocopy of any agreement you reached in that exercise. The summary should do at least the following five things.

1) Start with your name and the role you were assigned to play in the exercise, e.g., “plaintiff’s counsel.” For the remainder of the summary, however, do not refer to yourself in the third person, e.g., “plaintiff’s counsel offered to settle for $50,000.” Instead say, “I offered to settle for $50,000.”

2) State what occurred during the exercise, i.e., what each participant did. Be clear and concise.

3) Speculate why each participant in the exercise did what he or she did. While it is easy to state your own motivations, it is more important to try to understand the other participants’ motivations. Rather than stating the obvious, e.g., “Defendant started with a low offer because paying a lot of money was not in Defendant’s interests,” address more subtle or ambiguous actions of the participants.

4) Assess the success or lack of success of what each participant did. In assessing each participant’s success, discuss both whether the overall result of the exercise advanced a party’s interests and whether particular behavior during the exercise, such as negotiation tactics, “worked” or not. In discussing the overall result, do not use bland generalities like “The settlement was a success for Plaintiff because he got a significant amount of money and a success for Defendant because it avoided a costly and risky trial.” Instead, stick your neck out in predicting what would have happened had the parties not settled - including the results of further litigation - and then compare that prediction to the settlement you reached. If you did not reach agreement, compare that prediction to the offers that were made (and not accepted) during the exercise.

5) Analyze all of the above using the concepts raised in the Hornbook and any other readings.
 

                 CLASS ASSIGNMENT
I. INTRODUCTION
                      1 Hornbook §§ 1.1 - 1.8
                      2 re-read Hornbook §§ 1.1 - 1.8
1st exercise assigned
II. ARBITRATION
                      3 Hornbook §§ 2.1 - 2.3, 2.54 - 2.55
1st exercise due
                      4 Hornbook §§ 2.4 - 2.5, 2.9 - 2.10, 2.19 - 2.21, 2.47 - 2.49
Title 9 of the U.S. Code (Federal Arbitration Act)
                      5 Hornbook §§ 2.35 - 2.39; AAA Rules
2nd exercise assigned
                      6 Hornbook §§ 2.40 - 2.46
2nd exercise due
III. NEGOTIATION
  A. Negotiation Contexts
                      7 Hornbook §§ 3.1 - 3.6
  B. The Settlement/Litigation Choice
                      8 re-read Hornbook §§ 3.1 - 3.6
do 3rd exercise (not graded) in class
                      9 non-graded summary of 3rd exercise due
4th exercise assigned
                     10 before class, research to prepare for 4th exercise
do 4th exercise during class
  C. Negotiation Theory
                     11 summary of 4th exercise due
Hornbook §§ 3.7 - 3.10
5th exercise assigned
                     12 Hornbook §§ 3.11 - 3.13
do 5th exercise during class
                     13 summary of 5th exercise due
re-read Hornbook §§ 3.7 - 3.13
  D. Approaches to Negotiation
                     14 Hornbook §§ 3.14 - 3.32
do 6th exercise during class
                     15 summary of 6th exercise due
                     16 re-read Hornbook §§ 3.14 - 3.32
do 7th exercise during class
                     17 summary of 7th exercise due
8th exercise and Negotiation Plan assigned
  E. Preparing for Negotiation
                     18 Hornbook §§ 3.5 - 3.6 & 3.33 - 3.37
Negotiation Plan (graded) due at start of class;
start 8th exercise during class
  F. Law Governing Settlement
                     19 re-read Hornbook §§ 3.19 - 3.20
Hornbook §§ 3.38 - 3.42
finish doing 8th exercise during class;
Settlement Agreement or Release due 3:45
                     20 summary of 8th exercise due at noon Oct. 31
                     21 re-read Hornbook §§ 3.38 - 3.42
Hornbook §§ 3.43 - 3.45
review negotiation
IV. MEDIATION AND OTHER PROCESSES IN AID OF NEGOTIATION
                     22 Hornbook §§ 4.1 - 4.16
                     23 Hornbook §§ 4.17 - 4.26
                     24 re-read Hornbook §§ 4.1 - 4.26
do 9th exercise during class
                     25 summary of 9th exercise due
                     26 Hornbook §§ 4.27 - 4.28
do 10th exercise during class
                     27 summary of 10th exercise due
                     28 Hornbook §§ 4.29 - 4.30
do 11th exercise during class
                     29 summary of 11th exercise due

Copyright 2004 Stephen J. Ware. 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.