Finishing up on the Wash U ADR roundtable, here is the discussion surrounding John’s paper.
Not surprisingly John states that our teaching goal is teach students to negotiate effectively. One criticism he has of the current method is that we tend to focus on negotiating w/ counterparts on the “ultimate” negotiation that is limited to the litigation environment and that roleplayers parachute into the negotiation stage of a dispute. Among many proposed solutions, he suggests more realistic simulations – from interviewing clients, factual and legal research, client prep, and drafting settlement agreement.
Comments included:
- What you’ve described is more than 3 credits. . . . Your def’n of negotiation needs “communication” in there. . . . Parachuting in exercises are making pedagogical points – that point is emphasized in that negotiation and the next negotiation builds on the last, and so on.
- Maybe you want a series of mini-multi stage simulations b/c of the repetition (finding BATNAs for example). Try Viking Investments (Kellogg School) – the b-students can be the clients and the law students have to interview them and figure out what they have to do going forward. How do you find the BATNA when negotiating w/ clients. . . . business scholarship on the inability to do advocate role and objective advisor role.
- The norms negotiation for the class will be difficult. If you can get the students to establish them, there are some good papers there. The implicit model is adversarial based. . . . “subjective value inventory” Jared Curhan very good on this. Talks about how one communicates during the course of the negotiation.
- This sounds like an advanced negotiation course. You’re trying to get clients, characters, context.
- Worried about negotiations outside of class. You won’t be able to see them and can only rely on their abilities to recall what happened – it may not be complete nor accurate. . . . . Working w/ different people is important. What happens when assigned to a slacker?
- Outside of class negotiations lose the teachable moments you can’t anticipate . . . . Debriefing the same night as the negotiatoin is critical b/c the next class is another universe – you just loose so much. . . . The idea of using settlement counsel and litigation counsel is out there, but it’s so rare a quarter of 1 percent. I wouldn’t use that model in class.
I really enjoyed the symposium and found it very helpful (and was glad to see many long-time friends).
The feedback on my draft helped me see that I did not communicate some points clearly. So I plan to make some things clearer in the article – and to students in the 3-credit negotiation course I will teach next semester based on the principles described in the article.
Obviously, a short posting can’t fully summarize the article or the symposium comments. Since this is now “out there” in public, I don’t want to let some misconceptions float out there without clarification.
My main suggestion is to center the course around two multi-stage simulations, including numerous steps in the same case, starting from initial client interviews to negotiating the drafting of an agreement. The article lists nine possible stages, though I wouldn’t necessarily include all the stages in each simulation. Since returning from the symposium, I started to develop my syllabus and I figure we would spend about 10 of the 27 (75-minute) classes on specific issues and about 17 classes dealing with the two extended simulations. There is nothing magical about this allocation as faculty could choose other allocations as an alternative to doing all their simulations in a one- or two-stage format.
I plan to have students do one-stage simulations in class for many classes that would cover specific issues. For example, I am thinking about using one-stage simulations to deal with issues such as ethics and law of negotiation; theories of negotiation; assertiveness & empathy; identity, emotions, & culture; trust & persuasion; cognitive errors; justice; power; and handling problems in negotiation.
My article obviously needs to be clearer that students would spend a lot of time doing simulations *in class in addition* to doing simulations outside of class. For the multi-phase simulations, I plan to have them first do simulations outside of class and then, in a fishbowl format in class, we would re-enact scenes from the simulation, focusing on issues that students found challenging and/or that I think are particularly important.
My colleagues at the symposium worried that I am biting off more than I (and my students) can chew. Having roughly blocked out the course, I am convinced (deluded?) that it should be quite do-able (though I am sure I will change some things based on my experience in actually doing it).
Given the reactions at the symposium, there is some suspense whether my students and I will survive the course with whatever sanity we may have to begin with. So if I seem crazier than usual at the ABA conference in April, you will know why. Of course, I hope that I will feel energized by this experiment and that my students will have a more realistic experience of what it means to negotiate like a lawyer.
If this piques your interest and you want to get a draft of the article, email me at landej@missouri.edu. I will also be happy to share my syllabus.