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Teaching Negotiation
A bi-annual e-newsletter from NP@PON
(Negotiation Pedagogy at the Program on Negotiation)
Volume 3, Issue 1
Winter 2010
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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.
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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  negotiators 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)
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.
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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.
References:
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.
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Summary of Mediation Pedagogy Conference Participant Survey Results
by Jessica Corsi
Introduction
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.
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.
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").
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.
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."
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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 (www.pon.org). 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.
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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 (chouse@law.harvard.edu). 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.
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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.
You
are invited to submit ideas and suggestions for future "Teaching
Negotiation" e-newsletters. Please submit suggestions to Michael Graskemper at np@pon.harvard.edu.
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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.
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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.
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