Teaching Negotiation

A bi-annual e-newsletter from NP@PON

(Negotiation Pedagogy at the Program on Negotiation)

Volume 3, Issue 1
Winter 2010

In This Issue
Insights from a Communication and Negotiation Conference
Great Negotiators vs. Great Negotiations
Using Philosophy to Teach Dispute Resolution
Mediation Pedagogy Conference Participant Survey Results
New Values-Based Mediation Simulations
New Live-Mediation Teaching Video
Negotiation Journal Welcomes Submissions on Teaching
About NP@PON
Insights from a Communication and Negotiation Conference: The Benefits of Not Knowing
Negotiation Theory and Best Practice

by Alexandra Crampton and Jessica Corsi

An Experiment: Exploring Interdisciplinary Linkages between Negotiation and Communication Studies
What would negotiation pedagogy look like if we focused more on the core meanings and practices of communication? How can understanding the underpinnings of communication - the components of conversation and the exchange of meaning - help us understand and improve our negotiations? The weekend of December 5, 2008, Negotiation Pedagogy at the Program on Negotiation (NP@PON) brought together leading scholars from the fields of communication, sociology, and management to tackle these and related questions. 
In his opening remarks, Larry Susskind (MIT) explained that the symposium grew from the realization that, while communication is integral to negotiation, the negotiation field has rarely drawn from the academic disciplines that seek to define the various elements and processes of communication. By digging deeper into communication studies, the symposium aimed to uncover the potential gain of an interdisciplinary collaboration between negotiation and communication.
Conversation Analysis: Meanings and Patterns
Phillip Glenn (Emerson College) kicked things off by highlighting the contrast between traditional and more interactive definitions of communication. Traditional definitions describe communication as the exchange of messages between individuals: one individual crafts and conveys a message that is received, interpreted, and given a response by another individual. Glenn pointed out that this traditional characterization fails to capture the relational and interdependent aspects of communication. By emphasizing interaction, communication is re-framed as an active process of meaning making. An analysis that focuses on interaction posits that words, tone of voice, interruptions, and other aspects of conversation are not passive vehicles, but rather active forces in creating and understanding conversation. In this approach, individual actors are studied as "active sense-makers and sense-producers." Careful study reveals how language use becomes systematic through interaction, allowing researchers to examine language in action as following patterns. The search for patterns is a shared interest of and potentially important linkage between communication and negotiation scholars. 
To continue with the analysis of how word choice and use impacts ongoing dialogue, symposium attendees watched a short clip from a commercial lease contract negotiation role-play, then read a transcript, and then watched the video again. An important ground rule for participants was to avoid ascribing intention to why particular words were exchanged, and to focus instead on how the words and phrases themselves constructed and constrained the negotiation. At each table, there was a mix of communication and negotiation scholars who were then asked to analyze part of the transcript using conversation analysis techniques. Each participant was given a coding list to decipher transcription symbols. In order to avoid trying to "get into people's heads," they instead focused on identifying significant moves made through utterances and language sequences. 
Being asked to analyze a negotiation without first thinking of it through the lens of negotiation may have felt like getting hands-on experience with one hand tied behind the back. But in describing what was happening at the minute level of one word or one short exchange, participants were being asked to do what they typically teach as expert negotiation practice. Bruce Patton (Harvard Negotiation Project) pointed out that negotiation trainers teach students to suspend judgment and focus instead on the impact and observable details of what happens as conversation unfolds. Conversation analysis brings this same lesson through a more micro-level attention to language. 
"Bad" Negotiation and Mediation as Good Data
On the second day of the symposium, presentations moved from micro level conversation analysis to a macro-level more familiar to negotiation scholars. Doug Maynard (University of Wisconsin) analyzed the strategic moves made in a real estate negotiation between two parties. Some negotiation experts were concerned by the lack of collaborative strategies used in this particular conversation. Both agents relied on traditional bargaining that negotiation instructors teach is poor strategy. For some, negotiation theory was not only missing from the analysis, but also from the negotiation itself. This prompted a complaint that, "This is not negotiation!" and a response from communication scholars, "But these are the data." As Maynard had noted the night before, the two communities were at times bringing different purposes to a study of the same patterns. While communication scholars examine patterns in order to reveal reasoning - the "how" of negotiation - negotiation scholars, as applied researchers, use described patterns to raise questions and evaluate negotiation with an eye toward prescription. The result is that the two communities can come up with a completely different take on the very same interaction.    
A similar tension arose when participants reviewed and discussed a videotaped mediation session. The tape included a mediator whom participants thought was being directive, manipulative, and one-sided.  For mediation scholars and practitioners, this is the kind of bad mediation that they would never teach, but rather, they would teach students to avoid. But this was too much of an evaluative and imposed point for communication scholars, for whom "there are no accidents" in social interaction. Communication scholars prefer to allow data like this taped mediation to "speak for itself." This approach stood in marked contrast to the negotiation practitioner's idea of improving negotiations and building on best practices, and provided a clear example of how this symposium brought to the surface classic tensions between research focused on description and applied research intended for prescription. 
Activating the Linkages: Applying Communication Research to Negotiation Pedagogy Practice
How might tension between basic research that seeks to describe, and applied negotiation research used to prescribe, help provide insight into negotiation practice? The conference concluded by calling attention to communication research's application to negotiation and mediation research and pedagogy: 
1. Use transcripts in teaching: Analysis of transcripts could be added to how instructors teach students to analyze and reflect on practice. Students might first examine actions and outcomes through transcripts, and then apply their analytic skills to become more aware of how they are creating meaning through their actions and reactions, and to better reflect after the exercise.
2. Translate the linguistic moves identified by conversation analysts into prescriptive tactics and strategy: Doug Maynard found three strategies in his real estate conversation analysis: defer, demur and deter. These strategies help speakers to influence the progress and meanings generated through conversation. Students could listen to a taped negotiation, discuss what strategies they heard, and then examine transcripts to see what more they might find. These strategies could then be examined both for how they improve and impede effective negotiation practice.
3. Bring questions of interest to communication scholars into negotiation pedagogy: Curtis LeBaron's (Brigham Young University) research suggests that the relationship between material objects and conversation in meaning making is dynamic and complex.  As an example he demonstrated how a police interrogation became a conversation about a series of artifacts, such as recorded witness accounts. This conversation, in turn, informed the meaning of these artifacts. In opposition to the truism that "the facts speak for themselves," LeBaron's research presentation showed "how discourse creates the material world and vice versa." This analysis could be used by negotiation and mediation scholars to analyze how people communicate by using artifacts and how those artifacts (for example, a draft agreement as a text) then shape negotiation processes, meanings, and outcomes. 
4. Use training in conversational analysis to help students better understand the interaction as it actually occurs: Negotiation instructors could train students in conversation and discourse analysis so that students study the words and phrases as they are being used, as well as the impact this usage has on the dialogue, rather than simply ascribing motivations and meanings to these choices.

Great Negotiators vs. Great Negotiations: The Program on Negotiation's Great Negotiator Teaching Series
by Larry Susskind and Jessica Corsi

Teaching negotiation using case studies focused on the efforts of great Cristo Jeanne-Claude Sebenius Great Negotiatornegotiators can help achieve several pedagogical goals at the same time. Developed by Professor James Sebenius of Harvard Business School, the Program on Negotiation's Great Negotiator case study series, available from the PON Clearinghouse, highlights the lessons learned by each recipient of PON's Great Negotiator Award from 2000 to 2008:
  • Christo and Jeanne-Claude, the artists who created "The Gates" in Central Park (2008)
  • Bruce Wasserstein, Chairman and CEO of Lazard, an international financial advisory and asset management firm (2007)
  • Sadako Ogata, former United Nations high commissioner for refugees (2005)
  • Lakhdar Brahimi, U.S. ambassador and the United Nations' special envoy for Afghanistan (2002)
  • George Mitchell, former U.S. Senator, for his work in Northern Ireland (2000)
This diverse group of individuals represents a range of what it means to be a "great" negotiator and allows instructors to draw on living examples whose successful negotiations show why negotiation is as much an art as it is a science and how and why context matters. Some of the Great Negotiator case studies include video materials incorporating what the award recipients said during the seminars that PON organized in their honor.

Getting away from the "science" of negotiation and back to its nature as "art"

Why teach the stories of individuals whose lives and careers have been so special? After all, most students of negotiation will never find themselves in the same situations as the notables they study. As much as we would like negotiation to be a science, with recipes that can be followed to produce the same wonderful results each time, the fact is that negotiation tends to be more of an art that succeeds or fails because of the skill of the chef. As Richard Holbrooke, the 2004 recipient of PON's Great Negotiator Award noted in his acceptance remarks, "Negotiation is like jazz. It is improvisation on a theme. You know where you want to go, but you don't know how to get there."
A focus on great negotiators reveals the constant oscillation of varying negotiation dynamics and the way they require enormous creativity on the part of the negotiators. There is technique and there is art. The great negotiators indicate that you experience an intended outcome perhaps as often as an unintended outcome; your success in one context would have been impossible in a very different context, even if-or perhaps because-your technique and approach remained the same. It makes sense to remind students of this reality even as we teach what we believe are generalizable truths. We don't want students to get trapped in an unrealistic expectation that the same approach will see them through each time. The stories of the great negotiators make this point quite clearly.

Agency vs. Context-a false duality?

Agency vs. context: which plays the most important role in a successful negotiation? PON's Great Negotiator case studies series seems to say that both are important. Teaching a class that distinguishes great negotiators from great negotiations is an excellent way to emphasize the idiosyncrasies of each negotiation process while highlighting recurring themes and frequently-if not universally-essential skills and practices. One recurring theme in the series is that all great negotiators treat the set-up phase, as James Sebenius and David Lax call it in their book 3-D Negotiation, that comes prior to engaging in actual negotiations with great care. What they do during these pre-negotiations is quite arduous. Teaching from the case studies of great negotiators places the contextual complexity of negotiation alongside its method and rigor. As such, it adds "reality" to whatever academic framework an instructor chooses to use. The Great Negotiator series tackles both the context of notable negotiations and the unique styles of the negotiators who produce surprising results. The case studies are rich with the fluidity of the negotiation techniques that won the day. For example, the study of Charlene Barshefsky, U.S. trade representative during the Clinton administration and 2001 recipient of PON's Great Negotiator award, highlights her use of "acoustic separation" - a technique that involves communicating different (not contradictory, but complimentary) things to different people, and the strategic importance of varying framing. The successful use of this technique is, by definition, dependent on her ability to adapt to the situation. Other great negotiators talk about a range of improvisations.
Humility and History: Great Lessons from Great Negotiators

When Stuart Eizenstat accepted his Great Negotiator award in 2003, he said, "I close this chapter in my life, and accept with great humility your award with one of my favorite quotes, from a book called Ethics of the Fathers (Pirkei Avot). I think it summarizes what our team, our administration, the Program on Negotiation, and perhaps all of us try to do ... and that saying is, 'it is not your obligation to finish the task, but neither are you free to exempt yourself from it.'" With one of the Holocaust survivors that inspired Eizenstat's quest to reclaim property and achieve some restitution for victims of Nazi Germany sitting in the audience as he spoke, Eizenstat reminded everyone that his negotiation success came at the tail end of a story that involved a great many previous people and circumstances. He located both his inspiration to take up the task and his ability to succeed within its historical context.
Teaching from the Great Negotiator case studies imbues coursework with a human dimension that can shape students' own approaches. When students are separated from the context surrounding negotiations, such as the case studies on the peace agreement process in Northern Ireland and conflict in Afghanistan, the mere description of methods and players can seem cold and detached. Hearing the stories of great negotiators, as they recount them, reorients students towards the importance of context. In addition, the Great Negotiators case studies, for all their emphasis on the exemplary nature of the spotlighted individuals, re-injects a sense of humility and a cognizance of the forces of history that shape each negotiation.
Ideas and Frameworks for Teaching Great Negotiators

If you are interested in using these case studies in your classes, what is the best way to build in or build on the stories of the great negotiators? We are not entirely sure yet. A number of faculty are experimenting with different models. A course might begin by invoking the 3-D (set-up; deal design; tactics) framework pioneered by James Sebenius and David Lax. The class would begin by reading an account of a well known case, absent the story told by the negotiator, and systematically analyze the context and situation, identifying barriers to the desired outcomes and suggesting promising strategies and tactics. Then, the class would listen to the negotiation story told by the "great negotiator," analyzing and evaluating the great negotiator's approach as well as searching for contradictions between the accounts of others and the negotiator's own account. As they read (and listen to) additional Great Negotiator case studies, students can cumulatively assess and reassess, looking for evidence that the 3-D framework worked or didn't work. Of course, many frameworks could be used. And, there are a lot of other ways of cumulating or juxtaposing the lessons from the full set of Great Negotiator case studies. The Clearinghouse at the Program on Negotiation is just beginning to document the experience of instructors who seek to integrate the Great Negotiator case studies into their teaching (in a variety of fields). We welcome accounts by instructors who are experimenting with new ways of using the Great Negotiator teaching materials.
Great Negotiator Case Study Series

Great Negotiator 2004: Ambassador Richard Holbrooke (DVD)
A DVD featuring Ambassador Richard Holbrooke discussing his role brokering the Dayton agreement that ended the 1992-95 war in Bosnia as well as his role in resolving the multinational dispute over U.S. dues owed in arrears to the United Nations.
Great Negotiator 2003: Stuart Eizenstat (DVD)
A DVD featuring excerpts from a discussion with Stuart Eizenstat regarding his efforts negotiating reparations for victims of Nazi Germany.

Stuart Eizenstat / Negotiating the Final Accounts of World War II
A factual case study regarding former EU Ambassador and Deputy Treasury Secretary Stuart Eizenstat's work negotiating reparations for victims of World War II.

Lakhdar Brahimi / Negotiating a New Government for Afghanistan
A factual case study regarding former UN Special Envoy Lakhdar Brahimi's involvement in negotiating an interim Afghani government in 2001.

Charlene Barshefsky (A) and (B)
Two factual case studies regarding former U.S. Trade Representative Charlene Barshefsky's negotiations with China regarding intellectual property enforcement.

"To Hell with the Future, Let's Get On With the Past": George Mitchell in Northern Ireland
A factual case study regarding George Mitchell's involvement in the 1996-98 Northern Ireland peace negotiations.
Using Philosophy to Teach Dispute Resolution
by Ran Kuttner

Many negotiation and mediation instructors draw from other disciplines for a range of purposes. Insights from social psychology, for instance, can help students understand, explain, or predict certain interpersonal and inter-group dynamics. Ideas from economics and game theory can shed light on certain value-creation principles. The performing arts, including improvisational theater, can help negotiation students develop real-time listening and adapting skills.
I wish to advocate for the use of philosophy to help students studying dispute resolution understand certain key concepts. "The roles we play in mediation," writes Kenneth Cloke in Mediating Dangerously (2000, p. 9), "are largely defined by our own attitudes, expectations, and styles. These roles, in turn, depend on a set of assumptions about human nature, the nature of conflict, and the nature of change that have reverberated throughout Western political and philosophical thought for centuries, resulting in radically different definitions of mediation." The same argument is applicable to negotiation and for better understanding of the set of assumptions that complements, if not governs, the roles we play in negotiation. It is for this reason I suggest that it would be extremely helpful to include certain philosophical studies as part of even the most basic courses in negotiation and mediation.
When introducing the terms "integrative negotiation" and "distributive bargaining," I try to show the different mindset and philosophy that each of these modes of interaction draws from. I ask my students to read -- usually in concert with a "prisoner dilemma" exercise in class (e.g. "Oil Pricing", or "Win As Much As You Can") -- a summary I have prepared of Martin Buber's philosophy and the distinction he draws between "I-Thou" and "I-It" relations. Buber describes what he sees as two different sets of human relations and modes of interaction: an "I-It" relation that is characterized by cold indifference with respect to the other, who is treated as an object and an "I-Thou" relation "where each of the partners really has in mind the other or others in their present and particular being and turns to them with the intention of establishing a living mutual relation between himself and them" (Buber 1932/2002, p. 22). The word "present" is a translation of the German term "sosein," which can also be translated as "suchness," or "particularity." Buber, who wrote in the first half of the 20th century, claimed that an "I-Thou" relation requires effort and strength of soul while an "I-It" relation does not. Such strength, he went on to write, is often missing. The shift from "I-It" to "I-Thou" relations is what the humanistic philosophy of Martin Buber aspires for and is not unrelated to what we try to impress on negotiation students when we tell them that relationships matter in negotiation.
Learning Buber's philosophy, even just a kernel of it, allows students participating in a prisoner's dilemma exercise who are being exposed to the concepts of "integrative negotiation" and "distributive bargaining" for the first time, to reflect in a way that might not otherwise happen, and to see these concepts in a broader context. Without claiming that Martin Buber's philosophy underlies the integrative negotiation/distributive bargaining distinction, but rather by offering his philosophy as another perspective that may shed light on this distinction, I help them reflect on the lessons of the exercise on another level. I aim to clarify both a philosophical tenet as well as the students' own attitudes regarding human interaction.
In the evaluations at the end of my course, under the rubric "note which contents in the course where most meaningful to you," I often see many references to the philosophy of Martin Buber. I learned from my students that introducing Buber's philosophy helped them shift from an adversarial to a collaborative mindset.
Another example involves the introduction of post-modern philosophy when we discuss the "narrative" approaches to negotiation and mediation. In their book Narrative Mediation (1999), John Winslade and Gerald Monk claim that the "narrative" approach to mediation and its practices are built more on entering intoa philosophical position than on learning particular techniques: "Those who grasp the philosophical position will relatively easily and quickly master the practices... [while] those who undertake narrative mediation through a simplistic practical orientation of them flounder after a short time and fail to embody the spirit of the approach" (ibid, p. 32). Understanding the philosophical foundation of narrative mediation, according to Winslade and Monk, is essential to skillful practice. Thus, I believe, learning the philosophies of Jacques Derrida or Michel Foucault, the spiritual fathers of the post-modern theory that underlies the narrative approach to mediation, is extremely useful. My students seem to agree.
According to Jacques Derrida and the deconstructionists, everything is a text and subjectivity is constituted through linguistic relations. There is nothing more to reality but fluid and uncontrollable relations between linguistic signs. The sense of self (subject) and world (object) are relationally constituted in language. However, they should be deconstructed, as these linguistic constituencies do not signify any firm singular coherent entities. Language, according to Derrida, does not express thoughts of a speaking subject and does not refer to objects; rather, in order to define a term or designate an entity, it is important to explore how it appears in the text and how it relates to other designated entities in it. We do not therefore make ourselves from ourselves, but are referred to by the manner that we are situated in the text and by the understanding of ourselves. This in turn is always situational, formed in the signification of history, culture and discursive practices. By deconstructing the way we arrange the text of our experience, we open new opportunities for the re-construction of an alternative story, which in an interpersonal setting will hopefully be a co-constructed story that both parties can agree upon. Delving into the underpinnings of this worldview helps students understand what we should do if we wish to use a narrative framework; it allows understanding the importance of listening to people's narratives in manners that may help in the deconstruction process - a listening skill that goes beyond what we usually emphasize in our listening exercises.
When elaborating on the concept of negotiation, Derrida asserts that "when I think negotiation I think of this fatigue, of this without-rest, this enervating mobility preventing one from ever stopping," if you want -- without stopping in the secured realm of the fixed positions, but moreover -- the secured fixed and firm determinate agenda or sense of self, to which the post-modern philosophy opposes: "no thesis, no position, no theme, no station, no substance, no stability, a perpetual suspension, a suspension without rest" (Derrida 2002, p. 13). Within the context of post-modern thought the notion of suspending our judgments and presuppositions when entering negotiations or mediations, gains a new and challenging meaning.
My experience teaches me that integrating key concepts from philosophy into the curriculum can enrich what negotiation and mediation students are learning in important ways.

Buber, Martin. 1932. "Dialogue", Pp. 1-39 in Buber, Martin. 2002. Between Man and Man. New York: Routledge (2002).
Cloke, Kenneth. 2001. Mediating Dangerously: The Frontiers of Conflict Resolution. San Francisco, California:Jossey Bass.
Derrida, Jacques. "Negotiations," Pp. 11-40 in Mieke Bal and Hent de Vries (Eds.). 2002. Negotiations: Interventions and Interviews, 1971-2002. Stanford, California: Stanford University Press.
Winslade, John and Gerald Monk. 2000. Narrative Mediation: A New Approach to Conflict Resolution. San Francisco, California: Jossey Bass.

Summary of Mediation Pedagogy Conference Participant Survey Results
by Jessica Corsi

To better understand the teaching needs of the mediation community, Negotiation Pedagogy at the Program on Negotiation (NP@PON) organized a Mediation Pedagogy Conference in May of 2009. In advance of the conference, an 18-question online survey was sent to the 175 conference presenters and registered participants. The 75% response rate allowed us to illuminate important teaching trends. A summary of the key survey findings follows.
Summary of Key Results
The mediation teaching experience of the conference participants
The overwhelming majority of survey respondents are teachers of mediation (88%). Only 12% are newcomers to the field. More than half the attendees (60%) are experienced mediation teachers or trainers with eight or more years of experience.
 Question 1

Question 2

The settings in which respondents teach
Since teachers of mediation come from a wide array of contexts, survey respondents were asked to detail the settings in which they teach mediation. The majority of mediation teaching takes place in law schools (68%), followed by dispute resolution/conflict studies programs (37%), and business/management schools (23%). The subject fields in which respondents teach mediation include some surprising genres, such as theater and literature. Respondents citing theater highlighted how watching drama helps students improve listening skills; and analyzing conflict between fictional characters prepares students for mediation. The teachers who mentioned using literature in their teaching explained that being able to get inside the mind of a character helps students gain empathy, a valuable skill for mediators. Additional responses regarding the use of methods and materials from other disciplines include references to the field of psychology, among others. 

Question 5
The disciplines upon which respondents draw
The most common disciplines that respondents draw on in their teaching are Dispute Resolution/Conflict Studies (77%); Law/Legal Studies (62%); Psychology (62%); and Business/Management/Organizational Behavior (39%). Other frequently cited disciplines included Sociology (28%); International Relations (22%); and Education (21%).

The disciplines in which respondents use mediation skills
The majority of respondents teach graduate or post-graduate students (77%). Respondents mentioned how transferable-and necessary-mediation skills can be for people working in other disciplines. For example one respondent said:
"I teach organizational behavior and after my training as a mediator I have come to realize that the core skills of mediation are critical management skills whether or not the manager does actual formal mediation; the skills are critical to managing in general, not just mediation." 
Respondents also mentioned that, outside of university settings, mediations skills are also useful to them when they train groups, for example, practicing lawyers, those involved in urban facilitation projects, people in social work practice, and more generally, anytime they need to train others regarding the management of ethical dilemmas.
The importance of role-play and an experience focused, skills based approach
"I've become convinced that the best way to learn to be a mediator-especially for experienced lawyers who have spent long professional lives as litigators-is to actually 'do' it and, therefore, from my point of view, the most important component of the basic training has to be role-playing."
A recurring theme among survey respondents was the importance of role-play in teaching mediation.  We heard repeatedly about the need for "experience-based learning through role-play." Instructors were encouraged to "demo often and role-play early." Lecturing in mediation training was downplayed, because of the emphasis on skill-building. For example, respondents suggested that instructors "give lots of practical examples" and "let the students try new skills quickly before too much lecturing," mentioning that they "have found it very useful to give a little information up front, let them try it, then deconstruct the role-play and use the role-play as an opportunity to teach the concepts."  Respondents also suggested that having a professional observe role-play mediations is a useful teaching strategy. Many instructors are "always looking for new and varied role-play scenarios." 
Role-play was the highest ranked teaching method, both in terms of how frequently respondents use it (66% responded that they use it "very frequently" and 30% responded that they use it "frequently") and how important they think it is (83% thought it was "extremely important" and 15% thought it was "important").
Question 10-11 
Use of technology in trainings and in the classroom
Respondents seem eager to use technology and techniques that they have not yet tried. For example, one respondent mentioned that she taught university courses prior to the advent of the "great technological tools available now" and that if she were teaching in a similar setting now, "the technology tools mentioned [in this survey] would definitely be part of my teaching toolkit." This idea is also supported by comments that some instructors add new materials every time that they teach the class. However, others commented that they have expanded their technological reach "somewhat tentatively," indicating that barriers persist, perhaps due to the reluctance of instructors to try techniques they have not yet mastered.
There seems to be a disconnect between how frequently respondents use certain technologies and how highly they rank those technologies in terms of their importance in teaching mediation. For example, 22% of respondents stated that they "never" use course websites or online instruction to supplement face-to-face classes, but 28% responded that these are "important" tools, and an additional 27% responded that they are "somewhat important." Only 21% responded that making use of course websites was "not important at all." Similarly, 34% "never" use video recordings of their students/trainees, but 17% said that such video recordings were "extremely important," while 29% responded that it was "important" and 32% stated that it was "somewhat important." This suggests that opportunities to video-record students or trainees may be highly constrained. 
A U.S.-centered group with a growing international presence
The majority of survey respondents work primarily in the U.S. (77%), with the second- largest group teaching in Europe (17%). One respondent commented that mediation and conflict management have only recently been introduced at his or her university and he or she is now attempting to professionalize the approach to teaching it.  Importantly, this respondent has begun translating prominent mediation materials from English into the working language of his/her institution.  In addition to language barriers, one possible reason for the slow expansion of mediation teaching outside of North America is the difficulty of fitting mediation into an existing array of disciplines.
Question 4
Challenges and ways forward in teaching mediation
When discussing challenges to teaching mediation, one point came up again and again: the difficulty of acting as a mediator while teaching people the skills of listening and facilitation, as opposed to problem-solving. Respondents poignantly reflected on their own difficulties in portraying the qualities that they wished to impart to their students:
"As an instructor an ongoing challenge is [to be] more facilitative in my teaching and less directive. This seems to be a common challenge for my students as mediators as well: practicing patience and allowing the process to unfold through inquiry and facilitation versus rushing to an outcome or resolution." 
Respondents emphasized the need to reflect on these difficulties in teaching mediation and to model best practices:
"Listen and model your own behavior-I think this advice I would give [to students is the advice I would give] myself first: slow down, listen, show more time for silence and reflection. Mirror the qualities of [the] mediator in your teaching."
Beyond controlling these tendencies, the predisposition of many audiences toward adversarial interaction or definitive problem solving proves to be a frequent difficulty for instructors:
"It is challenging to teach how to listen and use [listening] in a constructive way." 
"I think the people who are most interested in my agency's training also have a basic interest in the law and in 'helping people' which can make them more advocates than neutrals."
"[A] difficulty for the MBA audience at the beginning of the course [is] to consider as important the role of somebody who does not propose a solution but only intervene[s] in the process."
"Some of my law student and lawyer students are so oriented to adversarial perspectives that they have trouble remembering to deal with interests."
"We are so used to solving/giving advice about other peoples' problems, that it is difficult to actually sit and actively and reflectively listen and to allow the other person to solve his/her problem without our giving advice and offering solutions."
In light of these challenges, many respondents had concrete suggestions and emphasized the importance of teaching listening, empathy, creativity, flexibility, and patience.
"Mediation as a skill requires a deep personal commitment and in my view requires a set of skills that are not taught (at least explicitly) in a law faculty-these are the skills of deep listening, empathy, creativity."
"Understand that mediation includes a variety of new skill sets which initially often appear to be daunting and counterintuitive to the learners."
"Let go of problem solving, understanding the difference between an open-ended question and a leading question."
"Be patient-it takes a while for law students to understand how different
 a role it [being a mediator] is."
New Values-Based Mediation Simulations

Three new role-play simulations focus on the mediation of values-based disputes. They are now available with Teaching Notes and an Annotated Bibliography from the Program on Negotiation Clearinghouse ( Each game provides an opportunity for students to explore how mediation might be used to address values-based and identity-based disputes--not just interest-based disputes. The parties and their attorneys are asked to craft settlements that do not require them to compromise their fundamental beliefs or values. (Students do not have to be studying law to participate effectively in these simulations.)

The first simulation is entitled Williams v. Northville. It is a five-person, non-scorable negotiation simulation based on a real case. It focuses on a dispute between a public school and a family over classroom discussions and educational materials that are part of a school diversity program depicting same-sex couples and their children. In this simulation, Jim and Jan Williams are the parents of two elementary school children in the Northville Public School System. They have asked the school principal for advance notification anytime homosexuality, same-sex marriage, or families headed by same-sex couples might be discussed in class, and for their children to be excused from such discussions. The principal has denied this request, explaining that no parental notification is required or appropriate when homosexuality is to be discussed as part of the regular school curriculum. The Williamses filed a lawsuit against the school district in state court asserting their right to have their children excused from any part of the curriculum that is contrary to their religious beliefs. The judge resolved the legal question in favor of the school district, holding that parents do not have the right to dictate what a public school may teach their children. The simulation begins when the Williamses file an appeal of the lower court's decision. Prior to oral argument, the appellate court administrator has urged the parties (and their lawyers) to try to mediate the dispute.

The second simulation is called Ellis v. MacroB. It is another five-person, non-scorable simulation based on a real dispute between an employee and his/her employer, a large, privately held software company. Until recently, Ellis was senior project manager at MacroB, headquartered in California. The simulation begins when a company-wide diversity campaign is launched featuring a series of diversity posters, including one that reads: "I am a gay man and I am MacroB." The posters were placed in employee work areas, including on the exterior wall of Ellis's cubicle. Ellis is devoutly religious and part of a faith tradition that holds that homosexuality is sinful and wrong. Deeply disturbed by the poster, Ellis taped several Bible verses to the inside wall of his/her cubicle including quotations condemning homosexuality and predicting dire consequences for those who engages in homosexual acts. When asked to remove the verses, Ellis refused. After several meetings with the company's diversity manager Ellis offered to remove the passages if MacroB removed its posters depicting homosexual employees. When no agreement was reached, Ellis was given a week off with pay to reconsider. MacroB removed the Bible verses that Ellis had posted. Upon returning to work, Ellis reposted all of the Bible passages, refused to remove them, and was fired for insubordination. Ellis and MacroB reluctantly agreed to speak with a mediator. After hearing from both sides, the mediator suggested that resolution might be possible. The simulation begins as both sides and their lawyers are about to meet the mediator.
The third new simulation is called Springfield OutFest. Based on a real case, it focuses on a dispute between two private organizations and a city over the terms under which a permit for a festival on city property will or won't be granted. The first organization, Springfield Pride, is a local advocacy group for Springfield's sizeable lesbian, gay, bisexual, and transgender (LGBT) community. Springfield Pride organizes an annual street festival called the OutFest to celebrate National Coming Out Day. Salvation Now!, a nationwide network of grassroots religious and social campaigners seeks to bring its religious message directly to those it considers to be living sinful lifestyles. In years past, tensions have flared between the two groups. Last year, they clashed during the OutFest and the police had to restore order. The confrontation dampened the festival atmosphere and attracted unfavorable media attention to the city and the OutFest. The simulation begins one year later. Springfield Pride is again requesting a permit to hold its upcoming OutFest in the city park. Fearing a confrontation and worried about its liability, the city has asked the parties (and their lawyers) to meet and discuss proposed guidelines and restrictions.

All three cases present authentic and hard-to-mediate values-based and identity-based disputes. The Teaching Notes, written by students in Professor Lawrence Susskind's course at Harvard Law School, reviews five different strategies that mediators might want to try in these situations. Key teaching points include the limits on interest trading when values and identity are at stake, the possibility that resolution may not be the most appropriate goal in such situations, and the need for mediators in values-based disputes to learn how to help parties confront their value differences effectively.   

New Live-Mediation Teaching Video Available for Purchase

In preparation for last May's Mediation Pedagogy Conference at Harvard Law School, NP@PON produced a video of an actual landlord-tenant small claims mediation - from start to finish, including side-bar conversations. It is rare that actual (as opposed to staged or acted) mediations are available for instructional purposes. The mediator in this case is Charles Doran, Executive Director of Mediation Works, Inc. (MWI) in Massachusetts. Conference participants watched the 25-minute version of the video. Then, several well-known mediation instructors from the fields of law, international relations, and public policy demonstrated how they would use the video to draw lessons for their students.
Three versions of the live mediation are available for purchase. The edited 25-minute version used at the conference is available to download for $100 or on DVD for $150. The full 90-minute version can be purchased for download for $200 or on DVD for $250. The Program on Negotiation Clearinghouse also offers mediation instructors an opportunity to create a custom-made version of the video to meet their teaching needs. To order the custom-edited video, contact the PON Clearinghouse ( You will be provided with an on-line look at the full-length (unedited) video and an "edit decision list" spreadsheet asking you to choose the exact sections that you want to include in your version of the mediation video. You can then download your edited video file or request it as a DVD (turn around time is about one week). Reelife Productions' award winning editor, Tom Adams, will answer any technical or logistical questions you may have along the way. The price for the custom-edited version of the live mediation video is $150 plus the cost of editing. The final price depends on the extent of the editing that needs to occur. 

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.
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Negotiation Journal Welcomes Submissions on Teaching

Negotiation Journal (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 here.
About NP@PON

Negotiation 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;
  • Support 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
  • Help PON reach new audiences of negotiation practitioners and students through workshops, seminars, and other educational activities.
NP@PON is led by co-directors Larry Susskind and Michael Wheeler.  For more information, please feel free to contact