Communique - CNDR's Newsletter
June 2010

We Made the List!

For the first time in its short history, Hastings CNDR has made the US News and World Report's list of Best Law School Dispute Resolution Programs.  We have felt for some time that the Center is competitive with many of the top programs in the country, and it is exciting to be finally recognized as such.  As Grande Lum, the Center's Director said, "It is an affirmation of the difference we are all making by training law students to be more effective problem-solvers and positive lawyers through the use of dispute resolution."  In publishing our highly acclaimed brochure last fall, we communicated to the world why we are one of the best programs in the country.  

Breaking into the top list after only seven years of existence is due in large part to the hard work of the Center's founder and first Director Chris Knowlton.  In just five years she developed a comprehensive curriculum, recruited top notch adjuncts to teach our courses, and created and coached the first Negotiation and Mediation Team.  Building upon Chris' work, the Center has continued to expand its curriculum, its clinical and externship programs, and create new collaborations with government agencies, such as our current Professional Responsibility Training for the California Public Utilities Commission, and academic institutions such as UCSF, UC Berkeley and Stanford. 

US News & World Report's specialty rankings are based on votes by legal educators, who each year nominate and rank up to 15 schools in each field.  We are now 12^th on the list.  "My vision and goal," according to Grande Lum, "is that CNDR will evolve and improve while marching up these rankings for years to come."  Those of us at CNDR have been discussing ways to enhance the Center, including the creation of a certificate program in dispute resolution, as well as increasing the offerings of CLE programs.

With the addition of renowned Professor Carol Izumi this summer, we look forward to her contribution to our existing programs as well as the creation of new ones.  Her experience in bringing ADR techniques into the criminal justice systems in Washington DC, Northern Virginia and Maryland will no doubt lend itself to further collaboration with court and government agencies here in San Francisco.  We have also recently been encouraged by the fact that several Hastings professors, who do not specialize in ADR, are incorporating ADR techniques and principles into their research in other fields of law.

While the notice and respect of our fellow educators is gratifying, we recognize that this is not the sole indicator of the strength and vitality of a dispute resolution program.  Our success is the product of a collaborative effort on the part of students, faculty, alumni and local practitioners who assist us through volunteering and advising.  Providing quality education in dispute resolution is not easy in the current economic environment of California.  Our heartfelt thanks go out to each and every member of the Center's community for their contribution to our success, be it in time or money.  We look forward to another successful year with your continued support!

Ethics Training

The Center for Negotiation and Dispute Resolution is currently partnering with Hastings Civil Justice Clinic to design and present a series of professional responsibility trainings to a major utility company.  As you may recall, CNDR presented a series of trainings to the California Public Utilities Commission (CPUC) a couple of years ago, which included negotiation, mediation and facilitation training for its Administrative Law Judges.  Those trainings proved to be quite successful for the CPUC, so when it was looking for someone to develop an ethics training as part of a CPUC settlement, they approached CNDR for help.

CNDR Director Grande Lum has been working with Professor Eumi Lee, who teaches roles and ethics in the Civil Justice Clinic, to develop an interactive, multi-media training that they can take on the road to the various branch offices the utility has.  The training is 3 to 4 hours long, and includes an overview of the codes and rules pertaining to business with the CPUC, video taped interviews with Commissioners regarding ethics violations and how to work most effectively with the Commission, case studies in which training participants discuss the various ethical sticking points, and a Jeopardy-like game to test their knowledge at the end.

Grande and Eumi have collaborated with attorney Mark Fogelman who was Assistant General Counsel at the CPUC some 12 years ago, heading the practice group that defends the Commission's decisions in state and federal courts.  He also served as lead counsel on a number of the Commission's significant litigation matters and was a close advisor to Commissioners.  His familiarity with the CPUC and its rules, and his reputation amongst Commissioners and Utilities has added great value to the training.  In addition, utility company staff is playing a major role ensuring that the trainings are organized, relevant and engaging to its employees.

The training covers PUC's Rule 1.1 of practice and procedure, which has to do with ethics when interacting with the Commission.  Also in the training is Rule 8, which pertains to ex parte communications in various Commission proceedings.  According to the settlement order, all of the utility's Directors and Officers must attend a training, so the training will be presented six different times at various locations through June. 

Don't Lie to Us

Save The Date!!  Friday, October 22, 2010 will be the day that CNDR presents "Emotion & Negotiation 2.0", a multi-disciplinary symposium addressing the role of emotion in dispute resolution, ways to detect and manage emotion, and the practical and social consequences of teaching emotion detection and management in dispute resolution.  Presenters will address how mindfulness, a form of meditation practice, improves a person's capacity to pay attention and therefore maintain equanimity in conflict situations.

Hastings professor Clark Freshman has extensively researched these and related issues.  Building on research indicating that emotions affect negotiation outcomes, specifically that happy negotiators will do better than sad ones, Professor Freshman has focused research in the area of combining mindfulness practice with negotiation strategies to bring success while addressing personal emotional well being.  Professor Freshman brings together the science of lie detection with the science of negotiation, teaching lawyers to be better negotiators.

The Hastings symposium is proud to host Dr. Paul Ekman, who is known for his mastery and systematization of the recognition of emotions from facial micro-expressions. Dr. Ekman is best known as the inspiration for and scientific advisor of Fox TV's Lie to Me and for his on-going conversations and book collaboration with the Dalai Lama on the topics of emotional awareness and compassion.  Dr. Ekman's presentation will take the form of an interview which will be broadcasted live to allow for interactive discussions with and questions for Dr. Ekman.   

Other top business, law and psychology experts and academics will provide different perspectives and insights into how our minds work and how to make use of that knowledge.   After the interview with Dr. Ekman, the symposium will be structured by panels addressing three themes:

• Michael Wheeler, Peter Carneval and Melissa Nelken, academics from the disciplines of business, psychology and law (respectively) will present their research and findings on how to study emotions and how emotions impact negotiations.
• Shauna Shapiro, Erika Rosenberg and Cliff Saron will discuss their research and findings on the positive impact of mindfulness and other meditation techniques on long term attention, well being and compassion.
• Charlie Halpern, Clark Freshman and Grand Lum will offer perspectives on the implications of emotional intelligence and meditation for negotiation, including issues of ethics, lie detection, compassion and trust.

The symposium will be interactive and accessible not only to attendees, but to those who cannot be present.  It will include a series of related offerings, such as taped interviews, guided meditations and other web events.  One such program will be offered by Gary Friedman, a very well regarded Bay Area mediator.  We will keep you updated as more details for the symposium become available.  In the meantime, SAVE THE DATE!

Article Comment - Law in the Shadow of Bargaining: The Feedback Effect of Civil Settlements

by Darshan Brach

One of the prime criticisms directed at dispute resolution focuses on the confidential nature of our of court settlements, claiming that privacy and lack of precedent can lead to injustices and harm to third parties.  Professor Ben Depoorter, a soon to be new member of the Hastings faculty, turns this criticism of withholding information from the public on its head to look at the adverse impacts of disclosing settlement terms.  He argues that "private" settlement terms, particularly unusual ones ("outliers"), become public and create their own sort of precedent, impacting future, similar settlement negotiations.  His article seeks to bring this phenomenon into the open:  it is intended "to be a starting point for a renewed discussion of the role of confidential settlements within the legal system."  (106). 

Professor Depoorter starts from the somewhat disturbing premise that the terms of confidential settlements aren't really confidential.  Despite the use of non-disclosure agreements, the article outlines the different ways that information about unusual settlements gets disseminated.  Depoorter explains that lawyers talk to one another about meaningful settlements, judges learn about settlements as mediators in judicial settlement conferences or other settlement oversight roles, and specialized professional legal publications, professional organizations and the media seek out and publicize information from the players in settlement negotiations.  The disclosures might be allowable because they don't give away confidential information or because the disclosure is required by the courts or by statute.

According to Depoorter, information on settlements has a "feedback affect" on the judicial system - that the terms of settlements impacts future adjudications as well as future settlements. He notes that it is primarily information on novel (or non-representative) settlements - the outliers - that are most circulated and make waves in the legal community.  For example, one impact of a higher than average settlement in one case is that it gives a plaintiff's lawyer a basis on which to seek a higher settlement in another.  Further, as Depoorter puts it, "a settlement precedent reduces the apparent unreasonableness of a[] claim ...[so] settlement trends may become normative benchmarks for judges and juries seeking to reinforce such valuations in settlement conferences or trials."  (104)

Depoorter's concern is that these "non-representative" settlements offer a questionable basis upon which to create precedent, partially because the reasons behind a particular settlement include non-legal and individualized interests.   In analyzing the impact of such settlements, Depoorter looks to the differing policy implications of confidential and non-confidential settlements.  For example, he notes that the potential distortions from unrepresentative information would likely lessen if settlement information were more broadly and publicly disseminated by embedding "outlier settlements in a larger body of settlements" (128)   But, as he points out, "[o]n the other hand, mandatory disclosure standards may chill parties' incentives to settle because they remove the opportunity to stave off negative public attention by settling." (128)

Clearly, the questions that Depoorter raise are important to those of us in the field of dispute resolution.  Just as we must address the legitimate social concerns of those who worry about the impact of private settlements, we need to address those concerns which relate to the public disemination of settlement terms.  What are the implications of this feedback effect for the future of settlements made in the shadow of the law?  How do we address any adverse impacts of this phenomenon?  What are the policy implications of confidential versus non-confidential settlements?  How do we address these?

If you are interested in reading this thought provoking article, it may be found at http://ssrn.com/abstract=1589964. 

Negotiation & Mediation Team

The Hastings Negotiation and Mediation Team had another amazing year in 2009-2010.  From the increased numbers of students trying out for the team in the beginning of fall (in 2007 we had 30 students try out; this year we had 80), to the long list of awards we earned by the end of spring, we are very pleased with the results of all of our efforts.  "We've taken our initial idea of promoting interest-based negotiation through competitions," says Coach Clint Waasted, "and built a program over the past ten years that continues to expand and achieve impressive results."

All of the students who try out for the team benefit from a month-long "negotiation boot camp" in early fall.  This involves intensive training and practice with coaching from our volunteer community of alumni and practitioners.  "The suggestions I received from the alumni and volunteer judges were incredibly valuable and the experience as a whole made me want to learn more about what CNDR has to offer," reports Mara Boundy, a 1L who tried out for the team, and then competed in Paris at the ICC's International Commercial Mediation Competition.  At the end of the bootcamp the students compete in an all-day In-School Competition to qualify for the team.  This year the team consisted of 27 students.  Each student who makes the team has the opportunity to compete in at least one live competition during the school year.

Here are the complete results of our fantastic year in order of competition:

ABA Regional Negotiation Competition, Provo, UT
9^th Place:  Ryan Cunningham and Megan O'Sullivan
11^th Place:  Lee Lam and Kalpana Sundaram

Liberty University School of Law Negotiations Competition, Lynchburg, VA
2^nd Place:  Sean Gentry and Jennifer Takehana
4^th Place:  Christoffer Lee and Timothy Crawley

International Chamber of Commerce's International Commercial Mediation Competition, Paris, France
5^th Place:  Leah Sykes, Emily Chan, Gabriela Bischof and Mara Boundy

ABA Regional Representation in Mediation Competition, Eugene, OR
3^rd Place:  Yaeri Kim and Kelsey Quaranto
6^th Place:  Henry Steinberg and Caitlin Daniel

California State Bar Environmental Negotiations Competition, Los Angeles, CA
2^nd Place:  Sean Gentry and Samir Abdelnour

The Negotiation Challenge, Leipzig, Germany
1^st Place:  Ryan Cunningham, Christoffer Lee and Timothy Crawley

International Academy of Dispute Resolution Mediation Tournament, Chicago, IL
1^st Place Mediator:  Megan O'Sullivan
3^rd Place Team Advocacy:  Wesley Sheffield, Christina Clauss and Ariane Mohamadi
4^th Place Advocacy:  Ariane Mohamadi and Christina Clauss
5^th Place Team Mediation:  Leah Sykes, Megan O'Sullivan, and Jennifer Takehana
6^th Place Advocacy:  Jennifer Takehana and Emily Chan
7^th Place Mediator:  Caitlin Tallon
9^th Place Team Advocacy:  Caitlin Tallon, Lisa Hathaway and Lee Lam
9^th Place Team Mediation:  Caitlin Tallon, Lee Lam and Lisa Hathaway
10^th Place Advocacy:  Lee Lam and Caitlin Tallon

Merhige National Environmental Law Negotiation Competition, Richmond, VA
5^th Place:  Charles Hunter and Valicia Saucedo

We are indebted to all of you in the CNDR community who volunteered to assist in coaching and developing our terrific team.  Thank you for your support; we couldn't do it without you!

How to be Your Own Mediator: Tell the Story Twice

Originally published in the Huffington Post by Grande Lum 

After you vent your side of the story, retell the story from the other person's point of view. Here is how to do this. Choose a specific conflict with one other person. Particularly useful is selecting a person who you blame for the current poor working relationship. Now, find someone else who you can confide in to be a listener and do the following exercise.

Tell the listener a story where the other person is responsible for the problems between you. The story you tell should have a beginning, middle and end. Tell the story from your perspective. The listener should just stay quiet and listen without interrupting.

Now, pause. Perhaps even take a deep breath and a break before retelling the story. Slowly go through the same story, except this time you (rather than the other person) are accountable for every outcome of the situation. If something bad happened like the other person shouted at you, retell that detail by saying how you caused the outcome, no matter how tenuous e.g. you said something to trigger the reaction, you initiated the conversation or you made fun of his prized superhero tie and belt set.

In mediation, if the timing is right, I will sometimes have each party tell the story from the other person's perspective in private or with the other party. It gets that person to acknowledge the validity of the other person's point of view and it affirms that other person as well. In private, it is similar to what is described above and can lead to a turning point. I remember how doing so helped break through a stalemate as one party in mediation recalled how they had been friends in the past, which led to reconciliation.

Catch the ways you leave out the other person's perspective. Alter your actions by altering the stories you tell yourself and others.

A test of first-rate intelligence is the ability to hold two opposing ideas in the mind at the same time, and still retain the ability to function.  -- F. Scott Fitzgerald

Volunteer Opportunities

As we mentioned in the Negotiation and Mediation Team article above, we put students who are trying out for the team through a month-long "Negotiation Bootcamp" to get them ready for competition.  Our try-out numbers promise to be high again, and we will need the help of our alumni and other practitioners in the area to assist us with coaching and judging these students. 

The dates and times we will need coaches and/or judges are below.  If you would like to sign up for any of these times, contact Jolynn Jones at jonesj@uchastings.edu or 415-581-8941, and indicate which dates and times you are available for.  Everything takes place on Hastings' campus.

Coaching:

Mon, 8/30/10, from 7:15 to 9 pm
Wed, 9/1/10, from 7:15 to 9 pm
Tues, 9/7/10, from 7:15 to 9 pm
Thurs, 9/9/10, from 7:15 to 9 pm
Mon, 9/13/10, from 7:15 to 9 pm
Wed, 9/15/10, from 7:15 to 9 pm

Judging:

Sat, 9/25/10, from 9 am to 12 noon
Sat, 9/25/10, from 1 pm to 4 pm

We thank you in advance for any assistance you can give us!