NEGOTIATION & ADR - Law 508
SPRING 2010 FINAL EXAMINATION
TAKE-HOME
DUE DATE: Monday, May 10, at 4 p.m.
TURN IN YOUR PAPERS TO THE FRONT DESK
OF THE LAW SCHOOL ADMINISTRATION BUILDING
You must choose one of the following three grading options: (1) research or original thought paper, or (2) this final examination, or (3) "Create-a-simulation." Everyone must turn in gambits. Your paper/simulation/exam and your gambits are all due at the same time - the due date above. YOU CAN SWITCH CHOICES BETWEEN GRADING OPTIONS AT ANY TIME.
Put your EXAM NUMBER, not your name, on the papers, simulations, or exams. Please put your name on the gambits (they will be sorted out from the paper/simulation/exam, and then graded separately as credit/no credit). NON LAW STUDENTS: You can get an exam number from the front desk at the law school administration building. Exam numbers ensure blind-grading.
The word count limit is 5,000 words. Please certify your word count by writing on the last page of your exam - "Word Count: xxxx words." Word counters are available under "tools" in both Word and Wordperfect. If you include either the question titles or the whole question in your paper, you can exclude those words from your word count total. And, you can exclude any citations (if you use any) from the word court.
QUESTION / PERCENTAGEOF EXAM
1.Important Skills & Ideas / 15%
2.Impasse in Negotiation and Mediation / 25
3.A Mediator's View of the Bargaining Process / 25
4.A Blended Model of Mediation Advocacy / 25
5.A Dispute Resolution Proverb / 5
6.Cartoon Captions / 5
Total / 100%
1.Important Skills & Ideas - 15 percent
Make a list of the 10 most important skills or ideas you learned (or had reinforced) about negotiation and dispute resolution in this course.
Select any 3 of those skills or ideas and explain why you say that those skills and ideas are important.
There are no "right" or "wrong" answers to this question. Most of your points on this question will come from discussing the three skills or ideas that you think are most important.
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2.Impasse in Negotiation and Mediation- 25 percent
There is much discussion in the negotiation and mediation literature about impasses, impediments, and breaking impasses. Are the impasses in negotiation and mediation the same or different? How does impasse breaking during negotiation and mediation differ? If you are at an impasse, how was it possible to break that impasse? Does the fact that an impasse was broken means that there really wasn't an impasse at all? Doesn't most of the psychology of negotiation suggest that psychological principles move each negotiator to overvalue their case and undervalue their opponent’s case? If that is true, how can a negotiator or advocate in mediation assist in breaking the impasse,especially if they (or their client) appear to be blinded by the psychology associated with their negotiation position?
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3.A Mediator's View of the Bargaining Process - 25 percent
Some mediators view the bargaining process as having three stages: 1) getting the parties unstuck, 2) moving the bargaining along, and 3) closing the final gap. Of course, certainly not all stages occur in every mediation. In your opinion, is this a helpful model of the bargaining process? Why or why not? Are there other stages that should be included in such a model? What should a mediator do during these (and other) stages of the bargaining to help the parties pass through these stages and accomplish theend goal of reaching a settlement?
More specifically, the three stages are:
1. Getting the parties unstuck from the positions that they ended with in their previously failed negotiations. This stage is largely the problem of getting the first new offer in mediation after the parties have ended their earlier negotiations. Among other things, it can be seen as getting a change in position or a shift in the discussion from positions to interests, or who will make the first move.
2. Moving the bargaining along. This stage is the process of generating significant movement in the bargaining process. It can often be seen as getting one or more concessions (or changes of position) from each side or the modification, reshaping, or prioritizing of interests in a new way.
3. Closing the final gap. At some point in the mediation, the parties may feel they have moved to their new bottom lines orreached unchangeable interests. The mediators still needs more movement or other changes to reach a settlement.
4.A Blended Model of Mediation Advocacy - 25 percent
This semester you have read about and worked with Professor Hal Abramson's problem-solving approach to mediation advocacy which seeks a mediator who manages the process by using a predominantly facilitative style (avoiding evaluative mediation), views the problem broadly, actively involves clients, uses caucuses selectively, and is willing to evaluate only as a last resort and only if given permission to do so by the parties. On the other hand, you have also heard about more traditional approach to mediation advocacy (described by Professor Dwight Golann and others for civil cases where the parties are represented by lawyers) which assumes that the mediator will primarily use a caucus approach, expect the mediation will mainly be about money, and be quite willing to use evaluative mediation approaches. Is it possible to blend these two approaches to mediation when you are serving as an advocate (lawyer) in a mediation, or do you have to adapt only one approach? If you are able to blend these two approaches, how would you do that and what would a blended approach look like? Are there other approaches that should be included in the advocate style besides the two general ones mentioned above? Will the approach differ depending on the type of case that is being mediated or some other factor? What factors make a difference, if any, and why?
I do not think that such a blended mediation approach is currently described anywhere in the mediation literature. I am asking for your best shot at creating it.
5.A Dispute Resolution Proverb - 5 percent
Tell me a negotiation (or communication, or conflict) quotation, proverb, saying or story. What is the meaning of that proverb? How does it relate to the topics that were covered in our course?
Below are some examples of quotations.
All polishing is achieved by friction.
Even a piece of paper has two sides.
The onlooker sees more than the players.
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6. Cartoon Captions - 5 percent
Write a caption for one or more of these cartoons based upon some topic from our class. All captions written in English will receive full credit.
These cartoons will appear in the ABA Dispute Resolution Magazine in my cartoon captioning contest. Some student captions are usually among the best ones submitted. Students using other grading options (paper or simulation) are welcome to submit captions for the contest.