Since 2004, I have focused much of my energy on developing an approach to teaching law students to function as dispute process architects - as creative innovators of institutional and organizational systems for managing and resolving conflicts from a problem-solving orientation.My interest in what William Ury, Jeanne Brett, and Stephen Goldberg coined "dispute systems design" (DSD) (Ury et al. 1993) stems from a deep-seated belief that lawyers, by dint of the special role they play for clients, have a unique opportunity to shape the ways many institutions (schools, companies, nations, non-profits) manage and resolve their disputes.
Implicitly or explicitly, every institution and organization has a system for managing disputes. In some cases, the system may be formal, with administrative hearings, courts, tribunals, and complex appeal and review processes. In other cases, organizations may have few if any formal means for managing conflict. In these instances, conflicts may be managed through informal negotiation and mediation or by simply "lumping it." As institutions and organizations become more aware of the ever-rising cost of conflict, many are seeking to design and implement systems to manage disputes with greater effectiveness and efficiency. Though lawyers have traditionally seen themselves primarily as advocates who resolve already-ripened disputes through litigation and negotiation, this explosion of interest in more efficient and tailored approaches to conflict management has led to an increasing interest in lawyers serving as dispute management system designers.
At the same time, law schools have often failed to innovate their curricula in ways that keep pace with the skills and knowledge lawyers need for the roles that they are often called upon to assume. Practically speaking, then, many lawyers end up improvising as they work to set up complex mass tort claims facilities, re-structure the human resource practices for large companies, or build governance structures in post-conflict states.It seemed to me that those of us in the academy could do a better job of exposing our students to some of the guiding principles for the successful design, implementation, and evaluation of these dispute management systems and thereby graduate lawyers who are better prepared for the challenges they will face in their professional practice.
My first foray into developing a DSD teaching program began as a collaboration with the legendary scholar and mediator Frank Sander, who helped launch the U.S. ADR movement with his call for a "multi-door courthouse" at the 1976 Pound Conference.One could not have asked for a better person with whom to initiate this project.In the first few iterations of teaching DSD at Harvard Law School, Professor Sander and I offered the course as a one-credit reading group.Reading groups at Harvard Law School are designed to be more informal and less structured than seminars and large lecture courses. Because of their small size and informality, reading groups make it easier for a teacher to experiment with new material without the risk of failure in front of a large lecture hall. Students in a reading group sign up precisely because they want to be part of an entrepreneurial, joint-learning experience. We selected some basic readings - Ury, Brett, and Goldberg's Getting Disputes Resolved, for example - followed by case studies.We also used a Supreme Court Case, Tasini v. New York Times, as the basis for an in-class DSD challenge. After reading the case, students were charged with designing a dispute resolution process for effectuating an out-of-court settlement to dispose of the case, which was remanded to a lower Federal District Court.
Our two reading groups met with initial success.From what we could perceive, students' ability to apply principles of DSD to real-life contexts increased as the semester progressed.Moreover, in course evaluations students expressed an increased interest in the reading and a desire for a more expanded program. Consequently, in the fall of 2006 I offered my first full 2-credit DSD seminar. The course had ambitious goals. I wanted to place DSD in context historically as the latest "evolution" of an ADR movement that had started in the U.S. context 30 years earlier. I also wanted to expose students to various theoretical approaches to DSD.Lastly, I endeavored to connect this body of theory to the world of practice by introducing students to a range of contexts in which DSD was used or ought to have been used.For this part of the course, I selected various contexts -- ranging from the 9/11 Compensation Fund, to the dispute resolution systems in place at the National Institutes of Health (NIH), to the design of the United Nations Compensation Commission (UNCC) -- on which to focus individual classes.
In choosing contexts, I wanted to ensure that I had examples of what I term "transactional" DSD and "organizational" DSD.The former relates to a "one-off" event that results in a stream of disputes that will eventually all be resolved.Mass tort claims such as asbestos or breast implant litigation fall into this category, as did the 9/11 Compensation Fund. Organizational DSD involves the design of institutional systems to manage an ongoing stream of conflicts within an organization. An example of an organizational DSD might include the design of a voluntary mediation program to resolve disputes between employees and supervisors in a large company. For each of these contexts, I invited a high-profile guest who had been responsible for or at least instrumental in the design of the dispute resolution system. To ensure that these sessions did not devolve into mere storytelling (a risk whenever visitors are invited to talk about their experience in a classroom setting), I asked each guest to focus her/his remarks and the ensuing class conversation on a particular theme. For example, one guest might focus on ethical questions that arose in the course of her work.Another might focus on the challenges of conducting the conflict assessment part of the work.Still another might focus on managing principal-agent tensions inherent in DSD.I repeated a similar version of this course in the fall of 2007, inviting a somewhat different group of guests and making a number of structural and topical changes.For example, responding to feedback from the 2006 iteration of the course, in 2007 I included a session critiquing the theory of DSD and another that looked at a failed attempt at DSD.
Contemporaneously with the launch of this new class, in the fall of 2006 I laid the groundwork for what has become the United States' first and only law school clinic that focuses on DSD. Students may enroll in the classroom component of the DSD course with or without the additional clinical component, the goals of which are to provide students with an opportunity to apply some of the theory to the real world of practice and to use what we learn working with clients to build new, more refined theory for the future. Currently staffed by two clinical fellows, a half-time program coordinator, and myself, the clinic identifies client projects for students in which they work intensively (10 to 15 hours per week in teams of 2 or 3 students) during the course of a semester to conduct a conflict assessment, a dispute system evaluation, or a preliminary process design.
Identifying possible projects and then explaining to potential clients what we mean by DSD is a daunting task. It involves intensive collaboration with client stakeholders to identify the work to be done by the students and then to tailor it in ways that are feasible, with respect to both the students' capabilities and the limits of an academic semester.For example, in one instance a client proposed that students both conduct a stakeholder assessment and design an entire dispute resolution system in a high stakes context during the course of a single semester. While we were flattered by the client's trust in our students' abilities, we also knew that the expectations were unrealistic.Moreover, while it is important that our client work be "real," we've sought to avoid taking on a project where there is serious risk that mistakes by the students could do real harm to an organization or worsen a current conflict.Despite being surprised by just how much work it takes to develop clinical DSD projects for our students, we have found the experience so far to be rewarding for us and for our students. We have been able to offer exciting, cutting-edge projects with clients such as the U.S. Department of State, The Citadel, the American Friends Service Committee (AFSC), and the Consensus Building Institute (CBI). In some cases, such as with the AFSC, the client has sought to retain us for a second semester of work based on recommendations in the initial program.In the case of the State Department, the client recommended us to another federal agency with whom we worked in a subsequent semester.
One particular challenge for students in our DSD clinic is the substantial ramp-up time to become conversant in the issues an organization is facing and its institutional structure.Simply being familiar with negotiation and dispute resolution theories is inadequate for many of our clinical projects, which function more like conflict management consulting projects than as law cases with a focused subject matter expertise such as housing or immigration.The time and energy involved in taking on even a limited-scope DSD clinical project requires considerable dedication from the students, the supervising faculty, and often the clients as well.
The Work Ahead
Despite some successes so far in developing a pedagogical approach that seems to be working both in and outside the classroom, we see many challenges ahead.
First, there is room aplenty for innovation and improvement. For example, our current DSD course relies to a great extent on outside visitors.The visitors - leading professionals and academics such as Ken Feinberg (Special Master of the 9/11 Compensation Fund), Cathy Costantino (DSD practitioner, adjunct faculty member, and co-author of Designing Conflict Management Systems, and Larry Susskind, founder of CBI and Professor of Urban Studies at MIT) --- enrich and enliven our course enormously. At the same time, recruiting visitors to the course every year is time-consuming and costly.Moreover, given my interest in creating a model DSD program that can be replicated at schools where the logistics of getting visitors (either because of physical distance, fiscal constraints, or both) might be more complicated, I recognize the need to develop materials so that the course can stand on its own, without visitors.
In addition, while we have developed manuals both for our clinical clients and our clinical students during the past year, there remain large gaps in the resources that we would like to make available to our students.For example, we currently have only one sophisticated dispute systems design simulation to use in our course.To supplement this, we would like to develop an interactive case that could be used as a discussion and skills-building vehicle throughout the semester.Such a case would have sequenced exercises that would invite students to work through the challenges that arise during the life of a typical clinical project.
This summer, we are developing a resource guide to help law students conduct field-based research.Most law students have little if any experience or knowledge on how to conduct high-quality quantitative and qualitative field research. While we cannot expect law students to become experts in conducting such research during the course of a semester, they do need to become familiar with basics of survey design, field interviews, and analysis in order to provide the highest quality work product for our clients.
The most successful law school clinics build in feedback loops so as to generate new theory from practice.Because DSD is an emerging field, we are particularly keen to learn from our successes and mistakes. To that end, we have developed mechanisms for capturing feedback from our students and our clients and, as a clinic, we have committed ourselves to systematic reflection and review through scheduled check-ins and an annual staff retreat.
The vision that I have for training lawyers to be dispute process architects is, admittedly, an ambitious one.I see enormous opportunity and potential for lawyers to reclaim their role in society as wise counselors and enlightened problem solvers.To do this, lawyers must learn how to diagnose disputes and prescribe processes for managing them that go beyond traditional litigation.
My hope is that in 25 years, most law schools will offer their students a clinical experience in some kind of dispute systems design, thereby helping to redefine the roles and goals of the next generation of lawyers. Ideally, Harvard Law School's educational program on dispute systems design will serve not only as a resource for Harvard Law students but also as an example and perhaps an inspiration for other legal educators interested in developing DSD courses or clinics.As I work to expand and improve our DSD educational program, I will need the support, advice, and coaching of colleagues and professionals. If you've been doing work in dispute systems design - as teacher, researcher, or practitioner - and have ideas, experiences, and thoughts to contribute on this topic, I'd love to hear from you.If I receive enough interest in this topic, I'll set up an online forum for continued dialogue, brainstorming, and discussion as well.To read more about our new clinic and the work we've done, I'd encourage you to visit our website at www.law.harvard.edu/hnmcp.
Robert C. Bordone is the Thaddeus R. Beal Assistant Clinical Professor of Law at Harvard Law School and the Director of the Harvard Negotiation and Mediation Clinical Program. He can be reached at email@example.com.
Thin-Slicing Talk:An Exercise in Analyzing Negotiation
and articles are rich with practical wisdom about strategizing, getting to yes,
closing a deal, and more.Often underrepresented in our teaching
materials, however, is consideration of the actual interaction that makes up the give-and-take of negotiation.
Such lack of attention is understandable.Recording negotiations presents challenges,
memory and self report are not too reliable, and much of what happens in talk
we scarcely notice.Most importantly,
one needs analytic tools that open up how talk works.
I study negotiation through a research method known as
conversation analysis (CA).In brief, CA
involves transcribing and analyzing recordings of naturally-occurring
interactions.It's a basic research
enterprise devoted to characterizing how people organize everyday social
actions such as greeting, ending a phone call, flirting, arguing, storytelling,
or negotiating.A couple of features of
CA research make it valuable for studying what happens in negotiating.First, we insist on carefully describing what is going on rather than speculating
about peoples' motives, goals, feelings, or personalities. This disciplined analysis leads to amazing
insights about how talk works and how people do what they do.Second, we locate our claims in the moment, asking continually, "Why
that now?"Talk is always contextual:produced at this moment, by this speaker, to
someone else, following some specific action, and setting up some specific next
one.Its meaning--the action it is
doing--can only be interpreted by coming to grips with its sequential
placement.Understanding that makes one
a better student of communication and a better negotiator.
Conversation analytic research requires years of training,
but some of the methods of CA work quite well as a learning activity for
beginning negotiators.Here are two
variations of an exercise I use with undergraduate and master's students in
classes on conflict and negotiation.
I select a video recording of a conflict or
negotiation.Almost any interaction will
give you something interesting to study, but I prefer naturalistic (rather than
role-played or fictional), two-party (rather than multi-party)
interactions.I select a one- to two-
minute interesting portion and create a detailed transcript that shows words
spoken as well as timing, pauses, overlaps, laughs, and other nonverbal
features.I ask students to study the
video and transcript repeatedly and analyze conflict patterns.They describe the actions getting done and how
individual actions fit into larger patterns.Based on this analysis, students examine how the people in the conflict
are displaying their identities and relationships.
Consider, for example, the following interchange between a
wife and husband, who are arguing over how to make their money stretch.
Husband:I'm gonna give you eighty dollars a week I
want the car
The husband's turn at talk contains an offer for a fixed
amount of money he will give her with the condition that it cover her auto
expenses.By his pronoun usage ("I"),
the absence of explanations, and the lack of any softening features
(hesitations, uncertainty markers) he makes a strong positional statement:he is presenting her the terms and conditions
he is willing to give.His nonverbals
(you can't see or hear them, but take my word for it) reinforce this
interpretation:he stares at her,
unblinking, unsmiling, and speaks firmly.Her quick reply-and it is a
reply, evident by its syntax-does not challenge the $80 per week, or that she
must cover the car from that--only that "trips" are an exception.[Note that the underlined "i" in "trips"
indicates that wife emphasizes this vowel.]Thus, the wife accepts the general framework of his offer while
quibbling with one component of it.
This is just one moment, and in this article I can provide
only a glimpse of what one might discover through close listening and
analysis.Consider, for example, if one
sees an extended pattern of one party making strong positional statements and
another offering only minor challenges.Consider how one might create and sustain an identity as forceful or
passive aggressive.Consider how talk
might reflect (and constitute) a relationship characterized by dominance and
submission.Consider how teaching might
help people envision alternatives: what are other ways the husband might
express his interests, and what responses might they open up? What other
options might the wife have for responding?How could they come to see their conflict in a different way?
A variation on this exercise is to have students videotape
themselves in a role-played negotiation.They view the video and select a brief segment (less than two minutes)
for microanalysis.Viewing themselves
has the obvious advantage that they can reflect on their own behaviors and
decide what's working well and what they might try to change.But CA challenges the student analysts to
avoid hypercriticizing, to remain nonjudgmental, and to stick to what they can
see and hear.
Here is an example.Students
in my graduate class role played a negotiation between a teachers' union and a
school board.The teachers requested a
ten percent raise, and the board representatives offered three.The two parties reconvened after caucusing, and
a few moments later the following interchange occurred:
Union rep:I think at this point in our negotiation
an effort to come to a solution that
works for both of
us all of us we um we would like
to make an equal
concession and come to eight.
Board member:Now. (0.7) Eight. um
Union rep:Which we feel is equally as
Board member:I- (1.2) I wouldn't be opposed? to
percent over the course of two or
[Note that the timed pauses are noted in parentheses (2.0),
all sounds (including "um") are included, and underlining represents emphasis.]
The teachers' union representative proposes
an eight percent raise, but before she names the figure she locates it "at this
point" in the process, justifies it as motivated by an attempt to reach agreement,
and terms it an "equal concession."Through these prefacing moves she frames the offer as reasonable and
responsive to contingencies of the process.The pause that follows we can hear as the board's pause, because a response is relevant and expected
following an offer.During this pause,
the three members of the board negotiating team exchange glances.One begins to answer, and his hesitation displays
some difficulty with the proposal.Before he continues, the teacher speaks again, defending the offer as
"equally as generous."Combined with the
earlier description of it as an "equal concession," this further shows the
teachers to be engaging in distributive bargaining, rooted in compromise and
standards of fairness. The board
member's unfolding response (only the beginning is shown here) rejects the
offer, but rather than doing so as a flat refusal it begins to recast the offer
to being possible over several years.
From this brief description of a small moment one can
consider a number of issues related to offers and responses.When should a negotiating party make an
offer, and in what form?How are offers
packaged, explained, and justified?How
should a negotiating party respond to an offer?How might one try to reframe a distributive bargaining move towards integrative
Closely analyzing actual negotiation talk serves as a
powerful exercise in careful listening, attending to nonverbal as well as
verbal signals, understanding how negotiation happens, and recognizing how
small moments can trigger big changes in interaction.Students with minimal training do well in
such assignments, and they tell me that talk is never quite the same again for
them:that pauses, questions,
disagreements, and a thousand other actions become objects of curiosity and
reflection.Awareness of how talk works
makes one a better negotiator and at its best can enrich the human experience.
A common question among negotiation educators who use role plays or simulations is how "realistic" these exercises should be, and how this affects student learning. For instance, should instructors select simulations that re-create as closely as possible the participants' real-life negotiation contexts and dynamics, such as telecommunications contract simulations with telecommunications contract negotiators and plea bargain negotiations with criminal defense attorneys? Or should they avoid simulations that may seem too close to home?
Familiar contextual reality
Many educational theorists believe that learning is context-dependent. In other words, the nature of a student's learning depends on the context in which the learning takes place. From this perspective, authentic activities - or learning activities that re-create as closely as possible the key dynamics and challenges of real-world activities - are critical to making learning relevant.
But what does it mean to make a negotiation exercise "authentic"? One approach is to select exercises in which the parties, issues, and factual contexts replicate as closely as possible the negotiations with which participants are familiar. This is most easily done with a relatively homogenous participant group-for instance, litigation attorneys, middle-school teachers, environmental activists, financial services sales representatives, or congressional representatives - who are likely to share some common negotiation experiences.
Contextually familiar simulations may help spark motivation, overcome objections about relevance, and - ideally - offer an opportunity to practice and develop skills that can be put to immediate practical use. Moreover, offering participants the opportunity to negotiate simulations contextually relevant to their own lives may assist with "low-road" learning transfer - that is, the triggering of reflexive, semi-automatic responses in conditions sufficiently similar to the learning conditions without the need for mindful application of abstract principles. Examples of teaching for low-road transfer include the use of practice dummies in a cardiopulmonary resuscitation (CPR) class (intended to prepare participants to perform CPR on humans) or moot court exercises in law school (intended to prepare future lawyers to argue effectively in a real court).
While personally relevant simulations may allow students to practice in an authentic and realistic context, however, that very reality may also create a barrier to behavioral change. When simulated negotiations are too factually similar to students' own real-life negotiations, the students may focus so much on the degree to which the simulation is consistent or inconsistent with their own experience (or on "relevant" facts omitted from the simulation) that they miss the deeper learning points (Susskind and Corburn 2000). Moreover, a familiar factual context may trigger familiar assumptions and schemas, causing students to fall into established behavior patterns. One instructor offers a striking example from an extended crisis negotiation simulation in a peace studies workshop. In the heat of the final days in this simulation, one participant reacted as if he were back in the war zone of his home country, blurting out, "When they go for the carrot, you beat them with the stick." (Timura 2004).
Less dramatically, personally relevant simulations may inhibit some learners - whether students in an academic course or professionals in a continuing education workshop - from experimenting with unfamiliar approaches, due to lack of psychological distance, fear of embarrassment in front of peers, and/or strategic concerns. Imagine a joint labor-management training conducted prior to real labor negotiations, for example: participants may be reluctant to engage in a simulation that could reveal strategic information relevant to the real negotiation. In such cases, "pseudo-real" simulations that retain some of the relevant dynamics but sufficiently alter the factual content and context can be a helpful approach (Ebner and Efron 2005), along with careful cultivation of a safe, constructive learning environment.
In addition, embedding participants solely in contextually familiar simulations may cause them to miss some of the deeper insights of analogical learning. Several recent studies (Nadler et al. 2003; Houde 2007; Moran et al. 2008) have demonstrated the power of analogical learning to help participants extract abstract principles and schemas and to transfer them to new situations (see the article on "Maximizing the Value of Experiential Exercises through Observational and Analogical Learning" elsewhere in this newsletter). While contextually specific training may help prepare participants to negotiate in that particular context, its sole use may not prepare them for high-road transfer - that is, the ability to abstract, understand, and apply general negotiation principles to a different context.
Unfamiliar contextual reality
Another approach to creating contextual reality in a negotiation simulation is to base the simulation as closely as possible on an actual negotiation - for instance, by incorporating aspects of the real factual background, issues, and stakeholder roles - even if that particular type of negotiation is not personally familiar to the students. Business students or executives might, for instance, participate in a simulation based on a real international merger negotiation between automobile manufacturers, even if they have no experience with the automobile industry or with merger negotiations (Weiss 2008). High-school or college students might engage in simulations based directly on historical group conflicts far removed from their personal lives, such as the Peloponnesian War in ancient Greece, the labor-management conflicts during the late-19th-century birth of the U.S. labor movement, or the community conflicts over land, reconciliation, and survival in post-genocide Rwanda (see the article on the Workable Peace curriculum elsewhere in this newsletter). The contextual reality of such simulations can be heightened through the incorporation of primary source materials from the actual negotiations, such as treaties, contracts, personal correspondence, or media reports (Ebner and Efron 2005; Elliot et al 2002).
Few significant real-world negotiations are conducted solely in the space of a typical class or workshop period. To combat the artificiality of classroom times and locations, some instructors encourage students to conduct preliminary and/or full negotiations outside of class (Watkins 2007; Weiss 2008). In addition to freeing up class time for other activities, this gives students an opportunity to experience the realities of various communication media, such as telephone and email, to negotiate relatively free of the time constraints and distractions that typically accompany in-class simulations, and to practice time and process management. Extensive negotiations conducted over days, weeks, or even months also expose students to the realities of "away-from-the-table" moves such as coalition-building (Watkins 2007; Weiss 2008; Susskind et al. 2005).
The use of contextually realistic but unfamiliar simulations can help address some of the risks of familiar simulation contexts described above, such as the potential for students to be distracted by the factual details and the possibility that a familiar context will trigger habitual behaviors. Moreover, reality-based but unfamiliar simulations have the added benefit of helping students better understand the context (e.g. the industry, culture, environment, sources of conflict, and so forth) in which they are set - which may be an additional learning goal for the course (Weiss 2008).
One potential problem with reality-based simulations is that, if participants know the historical outcome, they may simply re-enact what happened. This can make the simulation more of a history or acting lesson than a negotiation exercise. As with contextually familiar simulations, some educators use "pseudo-real" simulations (Ebner and Efron 2005) to address this problem. Using historical and current events, they develop simulations that are realistic enough to be familiar to students and yet different enough that students can concentrate on what could happen rather than what they think is inevitable given past experience. Other educators may refrain from informing students that their simulation is fact-based - or from telling them the historical outcome - until the simulation is over. In some circumstances, simply encouraging students to ignore what really happened and to focus on negotiating the best possible outcome will suffice. When the problem of mechanically re-enacting an outcome can be avoided, the process of "re-negotiating" an actual historical dispute may lead to insights about the non-inevitability of certain negotiation outcomes, and about the relationships among process, relationship, and outcome.
Attempting to leverage the power of both authentic activity and analogical learning, one instructor advocates for "analogical situated learning," in which students learn through a realistic simulation that is removed from their own past experience. A different approach to bringing unfamiliar contextual reality into the negotiation classroom is to invite real negotiators as guests. In addition to telling "war stories," guests can act as simulation observers, coaches, and participants (Ramus 2003). In one course, the instructor divides his students into teams who interview one of two expert negotiators about his/her perspective, preparation, and strategy. After this preparation, students observe a simulated negotiation between the two experts, both of whom have negotiated similar issues in real life. Here, students learn by acting as consultants and observers rather than as negotiators (Groth and Glevol 2007). The expert negotiators may bring a level of reality to the simulations that students cannot, and empirical research suggests that observation can help students develop behavioral skills more effectively than role-playing alone (Nadler et al. 2003).
Emotional and motivational reality
Content and context are not the only aspects of reality. Human emotions and motivations are another significant factor in "real" negotiations. Although students may want to perform well in classroom exercises in order to salvage their egos or impress their classmates, the motivation and emotions associated with tangible negotiation stakes - whether substantive or interpersonal-may be reduced or missing altogether in simulated negotiations.
Some instructors attempt to generate realistic emotional involvement by using complex, lengthy "mega-simulations" - sometimes taking weeks or months to run. Students can become so invested in the experience and so fully involved in their roles that their psychological and physical experience - the emotions, the stress, the motivation, even the exhaustion - approximates that of parties to a real (non-simulated) negotiation (Weiss 2008). Such an approach may generate both contextual and emotional reality.
Many instructors do not have the time or resources to devote to such intensive simulations, however, and therefore attempt to add doses of "emotional reality" to shorter, more artificial classroom exercises by including real stakes. One such approach is to competitively grade students so that their grade is a factor of how well they perform in negotiations relative to other students (see Moffitt 2004; Volkema 1991) or even how well they negotiate with their instructor (Byrnes 1990). Another is to impose a "player's fee" in which dollar amounts are assigned to each simulation used in the course and students can gain or lose actual money (Volkema 2007). Conceivably, to the extent that the addition of tangible stakes such as grades or money helps generate emotions and/or motivation comparable to those that students might experience in analogous real-world negotiations, this may add an authentic dimension to the exercises. On the other hand, the competitiveness and/or stress such approaches might induce could create an educational liability if they simply trigger old habits learned from past experience and put students on the defensive if they are unsuccessful. If students become too caught up in short-term concerns with winning, they may forfeit opportunities to take risks by experimenting with unfamiliar skills and tactics, and thus have a harder time learning to change their tacit negotiation knowledge (Patton 2000). Putting grades, money, or other tangible resources at stake in student negotiation simulations may also raise ethical concerns (see Lewicki 1991), privilege distributive approaches and short-term gains over value-creating approaches and long-term interests (Moffitt 2004), and perpetuate a dependent student-teacher power dynamic (Schneider and Macfarlane 2003).
Another approach is to attempt to generate particular (and of course real) emotions through artificially structured simulations. For instance, in the French collective bargaining simulation "The Visiting Rooms" (Thomas Guedj, 1998), participants on one side are instructed to use specific inflammatory statements during the negotiation with the express goal of generating (and later analyzing) a realistic emotional response in their counterparts (Lempereur 2004). Daniel Shapiro, co-author of Beyond Reason: Using Emotions as You Negotiate, frequently uses exercises designed to elicit particular emotions. During a stylized negotiation exercise at the 2008 World Economic Forum, for instance, he offered a select group of participants special privileges (such as access to a private room with champagne and gourmet chocolate and the ability to redefine the rules of the exercise) in order to create a status hierarchy. The status hierarchy, in turn, generated powerful emotions (jealousy, anger, pride, guilt, resentment) among the participants. Shapiro focused the debriefing on the effects of these emotions on participants' subsequent negotiation behavior.
Optimally, the emotional component of such exercises will help generate powerful and memorable learning. On the other hand, there is a risk that such exercises do not generate the intended emotions -- or that the emotional impact is so powerful that students become angry or upset with the instructor for what they see as an unfairly manipulative exercise - or with each other for behaviors resulting from powerful emotions. Clearly, any exercises intended to generate particular emotions should be very carefully designed and administered.
Some benefits and limitations of artifice
While contextually and/or emotionally realistic simulations carry a number of learning benefits, there are also some benefits in a certain level of artifice in negotiation simulations. Beyond the logistical benefits (for instance, artificially simplified and shortened simulations are easier to run and debrief in a typical class period than many of their more realistic counterparts), intentionally artificial simulations can help promote both analytical and behavioral skills.
A common purpose of stylized negotiation exercises is to highlight certain dynamics and principles in relatively neutral, unfamiliar environment. For example, many instructors use variations of the iterated prisoner's dilemma, such as the Oil Pricing Exercise or the Pepulator Pricing Exercise, to illustrate the tensions between competition and cooperation, between short-term and long-term gains, and between intra- and inter-team negotiations. The artificial context (in which teams of participants set monthly prices for barrels of oil or fictional "pepulators", with a limited set of pricing options and fixed profits based on their competitors' price) helps participants reflect on the process rather than on the facts (see Patton 2000). Another exercise, Parker-Gibson, artificially suppresses numerous potential issues associated with a real estate transaction in order to illustrate the dynamics of single-issue, distributive bargaining (Wheeler 2000). MIT professor Larry Susskind frequently designs games and simulations to restrict narrative content and assign specified choices in moves to ensure that particular negotiation concepts and skills are learned and developed (Susskind and Corburn 2000). Building on Kurt Lewin's famous phrase that "there is nothing so practical as a good theory," these games are designed to elicit specific negotiation dynamics and thereby illustrate particular aspects of negotiation theory, rather than teaching students anything about the historical, political, or professional context in which the games are set.
Simulations designed to elicit particular dynamics can be particularly conducive to harnessing the power of analogical learning, discussed above. For instance, students who participate in multiple simplified simulations that highlight logrolling opportunities can compare and contrast their experiences, which can help them extract an understanding of logrolling principles (Moran et al. 2008). While such analogical learning is possible with more realistic simulations as well, simulations artificially designed to elicit the relevant dynamic can help students focus on the desired principle, as well as avoiding the distractions of familiar reality and the typical complexity of unfamiliar reality.
In addition to helping highlight particular negotiation dynamics or concepts, artifice can help learners isolate and develop particular behavioral skills. Research in behavioral decision-making shows that many people do not negotiate optimally even when they have an analytic understanding of negotiation's best practices (Bazerman et al. 2000) Simple games and de-contextualized simulations can help break negotiation into isolated concepts, skills, and processes that are practiced until they become new habits, just as musicians practice scales to improve accuracy and dexterity and athletes repeat practice drills. For example, one instructor uses an exercise in which students practice useful phrases in a call and response until these phrases become a comfortable part of the student's response in negotiation discussions (Barkai 2003). Applying research from cognitive psychology, Gerald Williams and Larry Farmer teach negotiation through "deliberate practice," in which students learn through clearly defined and achievable tasks, immediate feedback, error correction, and repetition (Williams et al. 2008). Repeating and recording simulations uses the artifice of multiple tries rather than the one-shot deal of a real negotiation.
Of course, stylized negotiation exercises have their limitations as well - primarily, the flip side of realistic simulations' benefits. Students might object to their lack of relevance, might feel less motivated to participate, and might have difficulty making connections between these exercises and their own real-life negotiations (and thus might struggle to transfer their learning). Moreover, highly artificial simulations do not offer students realistic insights into the context in which they are set, and likely will not fully prepare them to grapple with the scope and complexity of real negotiations.
While negotiation students often assume they will learn best from simulations set in a realistic and familiar context, that very familiarity can sometimes create obstacles to learning. Some level of artifice can be helpful in highlighting specific dynamics as well as in helping free students from contextually-triggered habits, emotions, and reactions. Simulations that add the realism of negotiation contexts and/or emotive dimensions of risk and competition, however, can provide authentic learning activities that help students analytically and tacitly develop relevant skills.
At the same time, learning objectives do not necessarily force a choice between reality and artifice. For instance, pseudo-real simulations can blend the benefits and help mitigate the liabilities of using fact and fiction. Analogical situated learning emphasizes the realism of underlying structural elements in negotiation while adding narrative or contextual content that might seem artificial or unfamiliar to the students. And of course, instructors can use a combination of artificial and realistic simulations in order to achieve a range of learning goals. Ultimately, both reality and artifice can be effective in teaching negotiation through simulations, and the appropriate levels and types of each depends on the learning objectives.
Alexandra Crampton, M.S.W., Ph.D., is a post-doctoral researcher at the Program on Negotiation at Harvard Law School and at Boston University's Frederick S. Pardee Center for the Study of the Longer-Range Future. She can be reached at firstname.lastname@example.org.
Melissa Manwaring, J.D., M.Ed. is the Director of Curriculum Development at the Program on Negotiation at Harvard Law School and teaches negotiation at the F.W. Olin School of Business at Babson College and at Harvard Extension School. She can be reached at email@example.com.
Maximizing the Value of Experiential Exercises through Observational and Analogical Learning
by Christina Rosan
Most negotiation instructors use experiential exercises such
as role simulations, yet empirical research indicates that such exercises alone
do little to promote student learning. Experiential exercises are far more
powerful when combined with observational learning (such as live or recorded
demonstrations) and/or with analogical learning (in which students learn to
recognize and compare concepts across contexts).
In a 2003 Management Science article, Janice Nadler, Leigh Thompson, and Leaf Van Boven compare
four different methods for teaching negotiation: principle-based or didactic learning
(in which students are given information or advice about abstract principles), learning
via information revelation (in which students are given additional information
about the other party after a negotiation exercise), analogical learning (in
which students compare and contrast negotiation scenarios), and observational
learning (in which students observe a model negotiation).
To test the effectiveness of different teaching strategies,
students were asked to perform an initial negotiation simulation without
any training. Some students then were placed in a control group that received
no additional training, while others were exposed to one of the four
teaching strategies.Participants in the
principle-based or didactic condition studied a one-page synopsis of abstract
value-creation principles. Those in the information revelation condition
studied a handout that revealed all of their counterpart's priorities and
preferences in the first negotiation (thus indirectly revealing value-creating
opportunities).In the analogical
condition, participants read and compared two short cases describing
superficially different negotiations in which the parties recognized
opportunities for trade-offs (though the word "trade-off" was not used).Participants in the observational condition
viewed a videotaped version of actors negotiating the scenario they had just
completed, in which the actors created value and reached an integrative
agreement.Each of the four experimental
student groups and the control group then performed a second negotiation with integrative
opportunities, after which both their negotiation performance and their level
of conceptual understanding was evaluated.
Nadler, Thompson, and van Boven found that experience alone
- that is, simply participating in another role play without additional
training, as in the control group condition - was largely ineffective at
improving performance in the second negotiation. Neither didactic training nor
information revelation significantly improved performance either.
On the other hand, participants who were exposed to either
observational training or analogical training improved their performance
measurably.Participants in both groups
were more likely than those in the other groups to create value in the second
negotiation by constructing mutually beneficial trade-offs among issues.Interestingly, participants who were exposed
to observational learning exhibited the best performance in the second negotiation,
yet were least able to explain what they did or why it worked.The authors suggest that these participants may
have acquired tacit knowledge, which they exhibit in their behavior but which
they are unable to articulate. Participants in the analogical group also improved
their negotiation outcomes markedly -- nearly (but not quite) as well as those
in the observational group.However, the
participants in the analogical group were much better able to articulate the
principles underlying their value-creation efforts, which they presumably
extracted through their comparison of the cases.
More recently, in a 2008 Negotiation and Conflict Management Research article, Simone Moran, Yoella Bereby-Meyer,
and Max Bazerman explore the promise of analogical negotiation training more
deeply.They compare the effects of
"specific analogical training," in which students studied the use of a specific
value-creation technique across multiple contexts, with that of "diverse
analogical training," in which students studied different value-creation
techniques. The authors conclude that, while specific analogical training
facilitates the learning and application of that particular technique, diverse
analogical training appears to be more effective for teaching students broader
value-creation principles and for improving their overall value-creation skills.
Previous research on analogical training had focused on teaching
students to recognize commonalities across situations.In other words, the factual contexts, not the
negotiation techniques, constituted the analogies.Moran, Bereby-Meyer, and Bazerman
hypothesized that students would be more likely to transfer value-creation
skills when the negotiation techniques constitute the analogies: that is, when
the students are taught different strategies for value creation and thus exposed
to more general value-creation principles.
To test this hypothesis, student
participants were divided into three groups.One
group was a control group that received no training.The other two received either (a) specific
analogical training by reading two different case studies in which a contingent
contract was used to create value; or (b) diverse analogical training by
reading one case study creating value with a contingent contract and another
case study creating value through logrolling (i.e., trading concessions on
low-priority issues in exchange for concessions on high-priority issues).After the training, the students in all three
groups participated in a complex, integrative negotiation. The effectiveness of
the different training strategies was measured by the outcome of the
negotiation as well as an assessment of the individual's understanding of
The authors found that negotiators with diverse analogical
training - that is, those who were taught different methods for creating value
- achieved higher total joint gains than either the untrained group or the
group with specific analogical training.Those with diverse analogical training were also able to apply both
skills (logrolling and contingency contracts) at once and they were better able to use value-creation techniques that had not been previously taught, such as trading on differences in time preference and adding issues. Diversely trained negotiators seemed to have a more "advanced understanding of the broad concept of creating value." The authors suggest that, rather than focusing on specific value-creation strategies (such as contingent contracts) in different factual contexts, "learning more general negotiation principles (such as 'value can be created' or 'the pie is not always fixed') facilitates successful transfer to a broader range of new negotiation situations and thus enhances the ability to implement diverse value-creating strategies, including ones never previously encountered" (p. 120).
These two research studies suggest that the way in which
participants are introduced to negotiation concepts matters. Observational learning and practice seems to
promote tacit knowledge - an ability to execute certain skills, but with
limited ability to articulate the concepts or theories underlying these skills.Analogical training - particularly diverse
analogical training, in which students learn about multiple manifestations of a
broad concept such as value creation - seems to promote deeper conceptual
understanding and an ability to extrapolate across contexts.
With nearly 300 entries, the annotated bibliography compiles book chapters, journal articles, newsletter articles, and other publications on teaching negotiation, mediation, and related subjects.It represents the product of several months of research by post-doctoral researcher Alexandra Crampton.In order to remain focused and manageable, the bibliography includes only publications that explicitly address negotiation, alternative dispute resolution (ADR), and conflict management education, and not those that focus on either negotiation or education more generally.
Crampton created the bibliography in the RefWorks® database manager, which allows users to enter their own search terms as well as to browse by descriptor (keyword), title, author, date, and periodical (see the drop-down list under the "Search" button in the upper left corner).The browsing feature highlights interesting patterns -- for instance, the most-cited periodicals in the bibliography are Negotiation Journal (56), Conflict Resolution Quarterly (20), International Negotiation (14), Business Communication Quarterly (7), Group Decision and Negotiation (7), Journal of Legal Education (6), and Journal of Management Education (6).
The items in the bibliography address various aspects of negotiation pedagogy, from general curriculum design, to particular teaching tools and approaches, to considerations in teaching particular audiences.The majority appear to be based on field research, literature-based research, and/or anecdotal personal experience, though a few draw on experimental research as well.While most pieces discuss teaching negotiation, ADR, conflict management, or related subjects as distinct fields, some address negotiation as a vehicle for teaching a larger topic such as communication skills or critical thinking.A few take an entirely different perspective, treating negotiation as pedagogy - that is, drawing from negotiation theory and skills to improve teaching.Interestingly, says Crampton, "most of the literature that discussed negotiation as pedagogy is in the context of K-12 teacher education, rather than in the adult education context."
Spending several months compiling a negotiation pedagogy literature review led to some surprising insights, notes Crampton."It was fascinating to learn about the various specialized contexts in which people are offering and seeking negotiation training, such as medical programs that train residents to negotiate with patients and other medical professionals, engineering programs that train their engineers to negotiate with startups, vocational training programs, and crisis negotiation training programs."Crampton's research also uncovered different trends in different but related fields."Most of the negotiation pedagogy literature appears to focus on teaching students to improve individual performance," says Crampton."On the other hand, the conflict resolution education and peace studies education literature tends to focus more on teaching students to change the conflict or the context of the conflict.It has a much less individualistic orientation."
The literature review process also revealed the extent to which the concept of negotiation has permeated other fields."I didn't realize how widely negotiation is used as a lens throughout the social sciences literature as a way of thinking about political, economic, social, and personal relationships," muses Crampton. "Perhaps in our increasingly inter-connected, multi-polar world, in which power is more diffuse and ambiguous than ever before, people are reframing how they make sense of the world.They don't seem to be asking 'How is the world structured?' so much as they are asking 'How is the world negotiated?'"
Despite the diversity of contexts in which negotiation is being taught and applied, the bibliography does reflect a certain degree of homogeneity in the pedagogy literature.Faculty affiliated with the Program on Negotiation at Harvard Law School and articles in Negotiation Journal (published by PON in cooperation with Wiley Blackwell) account for about one-third of the bibliography's contents, says Crampton, despite her concerted efforts to seek out publications unaffiliated with PON.Moreover, she says, there appears to be a "classic negotiation training model" described repeatedly in the literature.This "classic model" tends to begin with a rational analysis of single-issue negotiations between two autonomous agents, then adds complexity (such as additional parties or issues) and some additional theory, with a huge focus on the task of transforming students / participants from distributive to integrative negotiators and a heavy reliance on role plays.Much of the literature "riffs directly off of the classic model," says Crampton.It may discuss teaching or training in a new context, with new constraints or opportunities, or with new teaching tools, but seems to accept the basic theoretical, pedagogical, and philosophical premises of the classic model."The literature reflects an implicit confidence in this model," comments Crampton.Few pieces appear to question or confirm the effectiveness of the classic model, though the bibliography includes some interesting exceptions, such as a course modeled on field-based clinical work and empirical research questioning the effectiveness of experiential learning alone (see "Maximizing the Value of Experiential Exercises through Observational and Analogical Learning" elsewhere in this newsletter).
Crampton's research also exposed some apparent gaps in the negotiation pedagogy literature."Perhaps the most striking gap is the dearth of empirical research on the long-term impact of negotiation training," she said."There's not all that much on what people learn even in the short-term context of a course or a lab experiment, but there's even less on what they retain over time, and what they're able to apply to new, real-world contexts."In addition, little attention appears to have been paid to how people learn to negotiate outside of formal training contexts."While there's plenty of material on what expert negotiators do, there's very little on how they learn to negotiate - how they became expert.Experts seem to have a great deal of tacit knowledge and I haven't seen much that helps explain why certain people become truly expert negotiators while others with similar types and levels of experience do not."
Bibliography users, however, will likely be far more interested in what is included than what is not.A browse of the extensive descriptor list (which includes both author-supplied keywords in the original abstracts and additional descriptors developed by Crampton for internal consistency) offers some inkling of the range of content: it includes descriptors relating to, among others:
particular educational approaches and theories (e.g. "action research," "analogical reasoning and training," "constructive-developmental theory," "double loop learning")
specific teaching and learning contexts ("law school context", "China", "executive training", "hostage negotiations", "e-learning")
insights from various disciplines ("systems theory", "feminist theory", "game theory")
various teaching tools ("simulations" and role plays, "Ugli Orange exercise", "case study training", "clinical training", "ladder of inference")
"Alexandra has created a resource that will be invaluable for negotiation teachers and scholars around the world," says NP @ PON Co-Director Michael Wheeler. "By capturing current best practices and stimulating ideas, her bibliography will surely spark further innovation."Such innovation is welcome, as the NP Annoted Bibliography is intended to be - in the words of NP @ PON Co-Director Larry Susskind - "a starting point - a way to sort through the growing number of studies and articles on various aspects of negotiation pedagogy."He adds that the bibliography will also help highlight - and perhaps inspire scholars to address - gaps in negotiation pedagogy research.
Free use and sharing of the NP annotated bibliography is encouraged.While the bibliography is being published in read-only format to preserve its integrity and format, suggestions for additions, corrections, and/or alternate ways of tagging or classifying materials are welcome, as the bibliography will be updated on an ongoing basis.Please contact firstname.lastname@example.org with any comments, questions, or suggestions.
New Workable Peace Curriculum Series Now Available
The Workable Peace program was designed to respond to the growing need for young people to understand violence and conflict, to develop tolerance, to appreciate alternative perspectives, to understand and meet their underlying needs, and to constructively respond to conflict in their lives.Developed by practitioners and educators at the Consensus Building Institute, the Workable Peace Curriculum Series is an innovative conflict resolution curriculum for secondary school classrooms, integrating the study of conflict with core social studies and humanities subjects, making it an effective resource for rigorous learning with clear academic and social relevance.
The Workable Peace curriculum has been successfully used by middle and high schools across the United States and internationally, as well as by post-secondary institutions ranging from community colleges to the graduate level.
Each curriculum unit contains five sections (each with a detailed Teacher's Guide):
1)an analytical framework that teaches the sources of intergroup conflict and conflict management strategies;
2)introductory activities to teach conflict analysis, using historical events and primary source documents;
3)an in-depth role play that challenges participants to voice their group's needs, understand the needs of others, and seek ways to meet their goals through negotiation with representatives of other groups;
4)additional resources, including an annotated bibliography of additional information on the issues in the role play, as well as civic learning activities that apply the conflict resolution skills to parallel issues in students' lives; and
5)additional negotiation and mediation skill-building activities.
The Workable Peace curriculum units are available for purchase individually or as a set through the Program on Negotiation Clearinghouse online at www.pon.org or by telephone at 800-258-4406.Single-use digital versions of the role simulations will be available soon.
For more information about the Workable Peace Curriculum Series, please contact Stacie Nicole Smith, Director of Workable Peace and Senior Associate at the Consensus Building Institute, at email@example.com.
Recordings of Negotiations or
The Program on Negotiation
at Harvard Law School
is seeking, for research purposes, video recordings of actual (not simulated)
negotiations or mediations. Any context
and any level of formality (or informality) are welcome. The key considerations are that the parties
in the video recording are actual negotiating parties, not actors or
role-players, and that the video recording was made with the parties' explicit
consent. The videos will be used for research
on patterns of interaction in negotiation and mediation settings.
Please contact Phillip Glenn, Professor of Communication at Emerson
College and PON Visiting Scholar, at firstname.lastname@example.org with any
suggestions. Many thanks for your
Negotiation Journal Welcomes Submissions on Teaching
(a quarterly peer-reviewed journal published by the Program on
Negotiation with Blackwell Publishing) seeks teaching-related article
submissions for its On Teaching section. Submissions on any aspect
of teaching negotiation, mediation, or related topics are welcome.
Teaching articles are typically 4,000 - 7,000 words in length. While they
may be theoretical or practical in nature, they should be analytically
rigorous and offer original insights, ideas, and/or research about
teaching negotiation effectively. If you are considering submitting an
article and are not a regular reader of the Journal, we strongly
encourage you to review several recent issues to familiarize yourself
generally with our content and style. All authors must also review
Negotiation Journal author guidelines before submitting. The guidelines
and information on how to submit articles can be found at: www.blackwellpublishing.com/nejo.
Join the Network: NP@PON Online Forum
Are you interested in sharing your teaching ideas with other negotiation educators? Would you like feedback from colleagues regarding your teaching questions or challenges? Please visit the NP @ PON Online Forum. Anyone who teaches negotiation, dispute resolution, or related topics in any context is invited to participate.
About this Newsletter
"Teaching Negotiation" is a biannual e-newsletter produced by NP @ PON and circulated free of charge to negotiation and dispute resolution educators. To access prior issues of this e-newsletter, please visit the "Teaching Negotiation" e-newsletter archive.
This newsletter or portions thereof may be reproduced at no charge for academic or nonprofit use only, so long as the NP @ PON "Teaching Negotiation" e-newsletter is clearly identified as the source and so long as the author(s) of individual articles are acknowledged. All copyrights are otherwise reserved.
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Pedagogy at the Program on Negotiation at Harvard Law School (NP@PON)
is dedicated to improving the way people teach and learn about
negotiation. Incorporating and expanding upon the historical mission of
the PON Clearinghouse, NP@PON serves as PON's intellectual focal point
for negotiation education.
NP@PON is involved a range of
activities including research, curriculum development, training, and
networking among those interested in negotiation pedagogy. The formal
mission of NP@PON is to:
Contribute to the growing field of negotiation pedagogy through research and publications;
both experienced and next-generation negotiation educators through
workshops, idea exchanges, and other educator-focused events;
Foster connections between communities of negotiation educators and education scholars;
Develop and distribute teaching materials that are useful in skills-based negotiation instruction;
Explore and test the application of new technologies to improve teaching and learning about negotiation; and
PON reach new audiences of negotiation practitioners and students
through workshops, seminars, and other educational activities.
is led by co-directors Larry Susskind and Michael Wheeler and associate
director Melissa Manwaring. For more information, please feel free to