July 2011
Communique - CNDR's Newsletter
July 2011
The Top Ten and More
In fall of 2008, CNDR held a retreat for its stakeholders to craft an action plan that would take CNDR into the next decade. After researching what other dispute resolution programs across the country were doing, we felt reasonably confident that if people knew better what was already going on at Hastings and what our plans were for the future they would realize that we have an outstanding dispute resolution program.
We published our first brochure, highlighting the breadth of our curricular offerings and the accomplishments of our faculty and our outstanding Negotiation and Mediation Team, in 2009. We were also pleased to welcome many ADR colleagues at Hastings during the ABA-ADR Meeting in San Francisco in April 2010. 
Since then, CNDR has continued to develop new courses, including a summer intensive Negotiation & Settlement course, welcomed Clinical Professor Carol Izumi to the Hastings faculty, hosted the symposium “Lie to Me?! How Emotions Matter in Negotiation” and participated in several ADR conferences across the nation.
Pictured (L to R): Mark Brown, Charles Hunter, Coach Clint Waasted, Timothy Crawley (with the Louise Otis Award) and Jennifer Takehana in Toronto.
It was then with great pride that we received the news last March that CNDR had been named one of the 2011 US News and World Report Top Ten Dispute Resolution Programs. We are thrilled that our planning, hard work and commitment to excellence in ADR education have resulted in this recognition from our ADR colleagues across the country, and we look forward to many more years of developing innovative academic programs and producing cutting edge research in this field.
Also in March, CNDR sent its Mediation Team to Toronto, Ontario to compete in the International Competition for Mediation Advocacy. In addition to the team winning the Warren K. Winkler Cup as the top ranked law school at the competition, Hastings was honored with the Louise Otis Award for Excellence in Mediation Education, presented by Madame Justice Louise Otis, Court of Appeal of Quebec (retired). The Louise Otis Award is Canada’s top honor for a dispute resolution program.
Another Fantastic Competition Year
As anyone familiar with Hastings’ Negotiation and Mediation Team knows, the spring semester is when the vast majority of ADR competitions occur. This year, six of the seven competitions Hastings entered occurred in the spring, with four competitions taking place in March. With four teams practicing and honing their skills at the same time, Head Coach Clint Waasted worked mornings, evenings and weekends to get everyone in competition shape. His time and 
commitment paid off once again. Two of our teams went on to compete in the Nationals. The following are the team’s complete results for the 2010-2011 competition season.
American Bar Association Regional Negotiation Competition, November 13-14, Denver, CO
3rd Place: Christoffer Lee and Ryan Cunningham
Top Ten: Mara Boundy and Caitlin Daniel
Pictured (L to R): Ryan Cunningham, Caitlin Daniel, Mara Boundy and Christoffer Lee in Denver.
LibertyUniversity Invitational National Negotiation Competition, January 28-29, Lynchburg, Virginia
2nd Place: Jennifer Takehana and Caitlin Tallon
5th Place: Charles Hunter and Yousef Farsakh
International Chamber of Commerce Mediation Competition, February 4-9, Paris, France
3rd Place: Yaeri Kim, Kelsey Quaranto, Helen Theung and Mark Brown
American Bar Association National Negotiation Competition, February 11-12, Atlanta, Georgia
Christoffer Lee and Ryan Cunningham
Pictured Right: Jennifer Takehana and Caitlin Tallon in Lynchburg, VA.
Pictured Left: Kelsey Quaranto, Yaeri Kim Helen Theung and Mark Brown in Paris, France.
American Bar Association Regional Representation in Mediation Competition, March 5-6 , Moscow, Idaho
1st Place: Melanie Desbiens-Sugarbroad and Stephanie Chan
2nd Place: Nicholas Campbell and Alicia Jovais
3rd Place: Ari Cover and Erika Schmidt
International Competition for Mediation Advocacy, March 7-12, Toronto, Canada
1st Place: Charles Hunter, Mark Brown, Timothy Crawley and Jennifer Takehana
California State Bar Association Environmental Section Negotiation Competition, March 18, San Francisco, CA
Brooks Harris, Daniel Zamani, Tyler Kelly and Jason Caruso
Pictured (L to R): Alicia Jovais, Nick Campbell, Stephanie Chan and Melanie Desbiens-Sugarbroad competing in the final round in Moscow, ID.
InternationalAcademy of Dispute Resolution Mediation Competition, March 22-26 , London, England
1st Place Mediator: Mara Boundy
3rd Place Advocacy: Wesley Sheffield and Sara Pollock
3rd Place Team Advocacy: Billy Hileman, Wesley Sheffield and Sara Pollock
4th Place Mediator: Billy Hileman
8th Place Team Mediation: Sara Pollock, Wesley Sheffield and Billy Hileman
Pictured Right: 1st Place Mediator Mara Boundy in London, England.
Pictured Left: Wesley Sheffield, Billy Hileman and Sara Pollock in London, England.
American Bar Association National Representation in Mediation Competition, April 13-15, Denver, CO
Melanie Desbiens-Sugarbroad and Stephanie Chan
This year has been a superlative one for CNDR, its programs and team. Our deepest thanks to all of you who helped us along the way.
Volunteer With the Team!
As the fall term approaches, so do preparations for recruiting new students to the Negotiation and Mediation Team. This entails not only spreading the word amongst students about team try-outs, but also recruiting volunteers to help coach these students through a three-week “Negotiation Boot Camp”. With as many as 100 students trying out for a limited number of spots on the team, we need coaches to give feedback and advice to our students, but also to help Head Coach Clint Waasted assess students’ skills and competitive performance. This also includes judging the rounds during the In School Competition, which is the final qualifying event for the team.
Our continuing success is due in large part to the quality of coaching we were able to provide to our students from local advocates and practitioners like you. The students learn so much from the feedback and advice given from professionals based on their real-world experience. Many of our coaches and judges tell us how much they enjoy working with the students, and how their volunteer experience with the negotiation team has actually helped them in their own practice.
We hope to continue our winning ways this year and once again we will need many volunteer coaches for our practices, as well as judges for the competition. Below are the dates and times we have scheduled.
Coaching:
Monday, 8/29/11, 7:15 – 9 pm
Wednesday, 8/31/11, 7:15 – 9 pm
Tuesday, 9/6/11, 7:15 – 9 pm
Thursday, 9/8/11, 7:15 – 9 pm
Monday, 9/12/11, 7:15 – 9 pm
Tuesday, 9/13/11, 7:15 – 9 pm
Judging at the In-School Competition on Saturday, September 17, 2011:
Round 1: 9:00 am to 12:00 noon
Round 2: 1:00 pm to 4:00 pm
If you are interested in volunteering with the Hastings’ Negotiation and Mediation Team, please email Jolynn Jones at jonesj@uchastings.edu with the dates and times you are available and would be willing to volunteer. If you know of someone who would be interested in coaching or judging for us, please forward this to them.
We are looking forward to another superlative year with your support. Thank you so much.
CNDR Summer Programs
The end of spring semester usually signals a slower time for CNDR, but not this year! With the success of last summer’s intensive Negotiation and Settlement courses, CNDR has expanded its course offerings within the Hastings Summer Legal Institute, for practicing attorneys, non-U.S. judges, lawyers and court administrators, as well as law students and incoming Hastings LL.M. students.
Our most ambitious summer program was a first of its kind court ADR systems design course for non-U.S. judges, attorneys and court administrators, held in late June. CNDR Acting Director Melissa Nelken, along with renowned court ADR specialists Claudia Bernard, Howard Herman and Sheila Purcell, developed “Envisioning, Designing & Implementing Court ADR: A Practical & Theoretical Program” and received a grant from the JAMS Foundation to support this innovative course. In addition to five days of rigorous training with core faculty in planning a court ADR system, participants were able to visit ADR programs at the California Superior Court and the First District Court of Appeal, and to meet judges, ADR providers and ADR faculty from all around 
the San Francisco Bay Area. Participants in the program came from eight countries, including Turkey, Malaysia, Canada, Spain, Russia, Singapore, Greece and Bulgaria. The participants were uniformly enthusiastic about the program content and the opportunity to have individual technical consultations with faculty. CNDR plans to offer the court ADR systems design institute again during summer 2012.
Pictured: 2011 Court ADR Systems Design participants in the Redwood Room of the Ninth Circuit Court of Appeals in San Francisco.
Between the end of exams at the law school and the beginning of the Court ADR program, CNDR sponsored a Continuing Legal Education course, “Negotiating for Advantage: Techniques for Successful Bargaining”, held at Hastings on May 20, 2011. Designed for both beginning and experienced negotiators, this well-attended program included participatory exercises to enhance strategic bargaining skills and increase understanding of negotiation dynamics. The day-long program was taught by CNDR Acting Director Melissa Nelken, Mediation Clinic Coordinator Darshan Brach and adjuncts John Dean, Jessica Notini and Rochael Soper.
For J.D. students, Adjunct Professor Jason Meek will be back to teach a section of Intensive Negotiation and Settlement in July. This two week course covers the same material as the semester course, and students can receive 3 credit units for it. Hastings students, as well as current J.D. students attending ABA-accredited law schools and incoming Hastings LL.M. students, are eligible for this class. It is particularly advantageous for rising 1Ls to take the course, freeing up their academic semester for other courses and getting a jump on the prerequisite course for all of CNDR’s advanced courses, including the ADR Externship Program. Anyone interested in enrolling in the Intensive Negotiation & Settlement course this summer should visit the Hastings Summer Legal Institute page.
Finally, CNDR’s summer offerings will wrap up with a 40-hour mediation skills certificate program led by Mediation Clinic Coordinator Darshan Brach. The course will meet five hours a day on weekdays from July 27-August 5. This training will introduce participants to the theory and practice of mediation. Instruction will include presentations, but will primarily involve hands on, targeted exercises and practice in the role of the mediator. Participants will learn by experience the skills necessary to successfully guide parties in conflict from impasse to mutually agreeable solutions. All of the participants will receive personalized attention and feedback on mediating from experienced mediators through small group practice sessions. Anyone interested in signing up for this late-summer offering should visit the website and download the application.
Where in the World is Clark Freshman?!
Within the field of dispute resolution, one may find oneself asking, “Where is Clark Freshman?” Renowned for being on the go teaching and consulting about lie detection, negotiation, and emotion, Hastings Professor Clark Freshman has indeed logged many miles this past year. However, what may be of even more interest is where his thoughts have led him during the same time. I caught up with Clark in May, just before he went to Colorado Springs to conduct a training for JAMS, and had the opportunity to find out where he’s been, both literally and figuratively.
Below: Clark with Friends at the Asian Art Museum in San Francisco.
The past year has been the busiest for Clark since he can remember. While the number of presentations on emotion, lie detection and negotiation he’s made to different groups across the globe is impressive, the evolution of these presentations and the integration of his many interests into one over-arching theme represent an impressive amount of cognition. Clark notes that he initially got into the field of dispute resolution through negotiation and how its problem solving qualities served as a kind of prevention for depression. His mother died of depression in 1995, and since then he has wanted to pursue happiness for himself and to help others find it. He realized that people with depression are often stuck in a certain way of thinking, and that the problem solving aspects of negotiation were very similar to aspects of cognitive behavioral therapy used to treat people with depression. He began to teach negotiation as “fluoride for mental health”, focusing on the collaborative, non-positional, interest-based approach to negotiation. Together with a psychology professor, he began a series of empirical studies on how emotion and related concepts like optimism affect not just mental health but also first year grades and negotiation.
Clark had been interested in the psychology of discrimination since law school and then grew to study the psychology of negotiation, including emotion. Practicing internal mindfulness or meditation helped him become more aware of his own emotions and how they colored how he perceived any given situation. He eventually became involved in the Center for Contemplative Mind and its work to promote mindfulness for lawyers. In 2002, he spoke at a symposium at Harvard Law School on the scientific evidence for how mindfulness as well as other types of meditation, including lovingkindess, improves negotiation. The Harvard Negotiation Law Review published a related article later that year. Recognizing these clues to emotion in himself led him to wonder about how to detect emotion in others.
Studying with Dr. Paul Ekman, the famous psychologist who is the inspiration for Fox TV’s Lie to Me, Clark focused on the ways one can detect emotion, specifically lies, in others. Clark is perhaps best known for his work with Dr. Ekman and his many trainings on lie detection to governmental agencies like the TSA, administrative law judges, California Public Utilities Commission, and the National Association of Bar Counsel. However, Clark’s work has shifted recently from the notion that lies are merely about factual information to the broader idea that nonverbal communication can convey ambivalent and even competing emotions and thoughts. Instead of using lie detection in an adversarial way (“I want to catch you when you’re lying”), Clark is using lie detection as a way to get to the full truth and to negotiate solutions that are sustainable. As a mediator and advocate, Clark has seen agreements fall apart when they merely papered over underlying conflict.
Someone who does a half shrug may be lying, according to Dr. Ekman, but Clark thinks that that person may feel ambivalent or uncertain. Clark feels lie detection is more complicated than whether someone lied or not; it’s about getting to the full truth through compassion, being open to the possibility that there’s more going on than just a lie. As an example, a parent may shrug that she wants custody not because she is lying but because she is not sure she has the resources to care for her child. Former business partners may shrug when they say they want no future dealings not because they are lying but because they are not sure what those dealings would be like - or are merely torn between different feelings and perceptions.
Clark has created a traffic light framework with which to conceptualize this. In a negotiation, if one observes a facial shrug (an extreme inverted smile) from the other side, one would note that the person is feeling ambivalent - thinking about the latest offer, not rejecting it, not accepting it. This would mean a yellow light in Clark’s framework and one should proceed with caution. A half smile, an expression of contempt, across the table would mean a red light - change direction or stop. A smile would usually mean a green light – things are going well, continue.
Clark’s conceptual evolution came full circle when he recognized that one can make very serious mistakes in lie detection because of one’s biases. A person who doesn’t make eye contact could be lying or he could be showing respect by averting his eyes. Bernie Madoff was able to defraud so many people because he seemed similar to many of the wealthy people who invested with him. These examples show how one’s conscious or unconscious biases can lead to inaccurate and perhaps harmful assessments. With both his early work on discrimination and his recent work on emotion and lie detection, Clark recognized that one can go wrong if one just pays attention to negative bias and negative emotion. A positive feeling for those like oneself can lead one to overlook the merits in those who are different, leading to a kind of unmindful discrimination. A positive feeling can also lead one to overlook clues that someone is lying. As a result, Clark has morphed his negotiation and lie detection presentations to include compassion and avoiding bias, bringing his work full circle from where it originated, which was to help others find happiness, incorporating interest-based negotiation, anti-discrimination, psychology, mindfulness and lie detection.
For more information about Clark’s work, including video interviews, podcasts, and blogs, visit www.clarkfreshman.com