By Heather Kulp, Clinical Fellow, Harvard Negotiation and Mediation Clinical Program
As a member of Nantucket’s Local 2509 of the International Association of Firefighters and a former undergraduate negotiation student at Boston University, Mr. Barber knew relations between the Town of Nantucket’s management and his union could be better. Since the firefighters’ contracts only lasted two or three years and the negotiation process itself often took that long, the union and the management sat down for contract negotiations every year. And every year, the negotiations spilled over into the next year or, if it was the final year of the contract, went to arbitration. This impacted everyone: arbitration provoked more fighting, poorer relations, and less of what everyone wanted. They hadn’t had a mutual agreement for six years. As one of the interested parties, though, Mr. Barber knew he was not the person to fix a broken bargaining system.After taking a Harvard Negotiation Institute course with Robert Bordone, Director of HNMCP and Thaddeus R. Beal Clinical Professor of Law, Mr. Barber quickly identified HNMCP as a potential source of assistance. The first step was to train union and management employees in basic negotiation skills. Harvard Negotiators students Adam Glenn ’10 and Elaine Lin ’10 provided such training. Once trained, though, the parties realized the negotiation process itself, not the parties’ skills, was creating roadblocks.
During the 2010 Fall Semester, clinic students Ken Gantz (an exchange student from University of California, Berkeley), James Goldschmidt ’10, and Emilie Aguirre ’12 took on that challenge. They conducted focus groups and interviews with multiple stakeholders and brainstormed ways to restructure a more effective negotiation process. The students also researched models of collective bargaining from other municipalities. In the end the students identified specific challenges to the current negotiation system and recommended procedural reforms designed to make a collaborative collective bargaining process more likely. They presented their findings to the board of selectmen, the town manager, the assistant town manager, the town human resources director, and union representatives.
Too often, reports and recommendations are stashed in a drawer, never to be employed. But in Nantucket, the firefighter’s union and the town management found the recommendations to be so helpful, they changed their contract negotiation approach.Instead of using the town manager as the primary negotiator for the town, the students recommended the selectmen appoint a negotiator with greater authority to settle. That way, if both sides discussed an option at the table, the management representatives could modify it or agree to it outright, without having to go back to the selectmen for approval.
“That was one of the best negotiation suggestions the students had,” Mr. Barber relayed. “We’ve had one round of negotiations since the project, and we settled at the table.”
While settling at the table is certainly beneficial, HNMCP students know that a sustainable bargaining system also ensures both sides’ interests are met. Without addressing the primary issues head on and discussing them in intelligent ways, the students knew their clients could easily revert to entrenched behaviors. Thus, they helped both sides focus on what mattered most, instead of getting bogged down in smaller, less important issues.
Mr. Barber praised the students for taking a genuine interest in each side. This helped create a more constructive negotiation environment. “Before, no one had talked about negotiations in terms of how the process had gone. People just bickered about what they’d gotten or not gotten. This time, the town and the union worked hard on improving negotiations before we negotiated, and that was apparent. We got a fair contract that both sides are happy with.”
The agreement included a provision to double the number of firefighters during busy summer months, a primary concern for the firefighters. In turn, the town representatives received some cost savings that made the increase in personnel easier for the town to approve.
The biggest challenge for the firefighter’s union was describing the new process to its members. They were so used to the former system of “fighting it out” in arbitration that it took awhile for them to see the benefits of a collaborative process. But once Mr. Barber explained that the new process allowed them to vent frustrations at the table and add value to their contract, not one firefighter voted against it.
The firefighters and the town are planning to use the same process for future negotiations, as both sides felt it created a healthier, more trusting relationship between the parties. Having a successful model has encouraged the town and other unions to rethink their bargaining structures, too. Since the firefighters’ negotiation, no other town employees’ unions have gone to arbitration. The police department is considering using a collaborative bargaining process similar to the firefighters, especially since the same town officials are involved in negotiating the police contract.
As for the firefighters, they are anticipating a well-staffed summer season. “We have a lot to build on,” Mr. Barber conceded. “It will get better with each round. We like where we are, and where we are headed. Everything’s looking up after HNMCP worked with us.”
“For the student attorneys at the Harvard Legal Aid Bureau, the nation’s oldest legal services organization, a victory in court is always a reason to celebrate. But recently, HLAB student attorneys Jennifer Ramos ’13 and Shira Hoffman ’13 achieved a legal victory with a type of case work that students at HLAB don’t often do — one that had the potential to substantively affect many of the low-income clients HLAB serves. Supervised by clinical instructor Stephanie Goldenhersh, Ramos and Hoffman filed an amicus brief in support of a low-income mother in Worchester, MA in an appeal to the Massachusetts Supreme Judicial Court of a decision about the child support payments she was receiving from her children’s father….”
Massachusetts state courts have been struggling with budget cuts for years. One of the most drastic cuts has been to the law clerk programs, which once employed law graduates to assist judges.
Fortunately, the Judicial Process in Community Courts clinical program at HLS is helping to address this financial gap by placing students with individual judges at the Superior Court, District Court, Boston Municipal Court, Juvenile Court, and Land Court Departments of the Massachusetts Trial Court. Students are also placed at the U.S. District Court. Students work alongside judges observing court proceedings, as well as researching and writing about various topics in many different areas of the law. The majority of the student projects involve research and drafting for pending motions in both civil and criminal cases.
During the 2013 spring semester, students produced over 500 hours of legal research and writing for their supervising judges in addition to the time they spent in court room observation and discussions. The Hon. John C. Cratsley (Ret.), Lecturer on Law and director of the program, sees this “as a major contribution at a time when funding for law clerks has been virtually eliminated”. Liz Solar, HLS Director of Externships, noted: “This clinic provides students with a unique opportunity to see firsthand the inner workings of a complex court system and how all the issues of contemporary society play out in the courts on a daily basis.”
In addition to researching and writing, students also worked on complex projects including a comparative look at the judicial evaluation process in other states, judicial conflicts of interest, and comparative sentencing practices. Several of the students’ final papers evaluated issues of immediate concern to the Massachusetts judiciary:
- Jake Lieberman (JD ’14) and Jared Young (JD ’14) worked with the staff attorney for a committee of the Supreme Judicial Court studying changes to the 2003 Code of Judicial Conduct. Each drafted proposed language for conduct not presently covered in the ten year old version of the Code.
- Mary Triick (JD ’13) and Jessica Gorman (LLM ’13) wrote about the new Harassment Prevention Statute (G.L. c 258E) and its impact on the community courts. Jessica evaluated how and why these orders differ from domestic violence restraining orders under G.L. c 209A and whether this statute already needs amendment. Mary evaluated the new initiative at the Harvard Mediation Program to offer mediation for some of these disputes in two local courts.
- Karla Morey (JD ’13) wrote about the contemporary issue (part of which was argued at the SJC on May 9, 2013) regarding “The Case for Adopting a Categorical Approach in Response to the Annie Dookhan Scandal”.
Participating judges had high praise for the quality of work produced by their HLS student interns. The following are typical comments:
“[My HLS student] was GREAT! He has strong legal research skills and is an excellent writer. He is incredibly quick, very smart, and a really nice person.”
The Hon. Janet L. Sanders, Suffolk Superior Court
“[My HLS student] did excellent work for us on a number of projects. Her work was described by our judges as ‘excellent’, ‘quick study’, ‘she is great’, and ‘she gets it’. She’s a winner. Keep them coming.”
The Hon. Stephen M. Limon, Boston Juvenile Court
“I just wanted to let you know that it was wonderful having [an HLS student] as an intern. She did a great job, and tells me she enjoyed her experience here. Thanks again!”
The Hon. Robert B. Foster, Land Court
“[My HLS student] was terrific. She was very enthusiastic, very inquisitive. She clearly put a lot of thought into each assignment and was eager to follow up with any suggestions I made into new areas of research.”
The Hon. Robert N. Tochka, Boston Municipal Court
“[My HLS student] was great. Written work and research was terrific. I really enjoyed having her with me.”
The Hon. Rosalind H. Miller, Boston Municipal Court
“It was my pleasure to supervise [my HLS student]. She was a great intern. Her research and writing skills were excellent.”
The Hon. Ernest L. Sarason, Boston Municipal Court
“Please give [my HLS student] the highest possible grade for his work with me. Thank you for making it possible for him to work with me.”
The Hon. Mark L. Wolf, U.S. District Court
Congratulations to Alex Smith and Lisa Sullivan, winners of the inaugural Harvard Law School Exemplary Clinical Student Award!
This award recognizes a graduating student who exemplifies putting theory into practice through clinical work. The student winner has demonstrated excellence in representing individual clients, undertaking group advocacy or policy reform projects. In addition, in keeping with the clinical teaching model, the student has been self-reflective and shown thoughtfulness and compassion in their practice and has contributed to the clinical community at HLS in a meaningful way.Alex Smith has spent more than 22 of the past 32 months since entering law school providing direct legal services to the poorest and most marginalized disabled Boston residents through his work at the WilmerHale Legal Services Center (LSC). Julie McCormack and the Community Lawyering Program team nominated Alex for:
During her time at HLS, Lisa Sullivan participated in the Harvard Immigration and Refugee Clinic, Harvard Defenders and Criminal Justice Institute (CJI). CJI Clinical Instructor Rob Proctor has high praise for her work in the clinic, writing:
“…his firm adherence to the quiet, less heroic, everyday practice of ethical lawyering across literally hundreds of intakes and cases, his attention to conflicts of interest, his careful explanation to clients of their and our rights and responsibilities, his consistent care with highly confidential medical, personal and legal information, his comprehensive assessments of the broad range of legal issue presented in each case, his thoughtful examination of the social and political contexts implicated, his deeply generous mentoring of several rounds of new clinical students and interns, his insightful and constructive critique of systems and practices, and the intelligent compassion he has shown to each and every individual he has encountered (so much so that his clients are genuinely distressed that he is now leaving)”.
“Lisa embodies all the characteristics I think are important for all HLS clinical students: compassion for the clients and for other students, an unwavering commitment to justice, zealous advocacy, attention to detail, thoroughness in preparation, and inspiring optimism…. Lisa was certainly a zealous client advocate, which is always paramount, but what sets Lisa apart is that she was able to establish the same goodwill, respect and attention of the courtroom in a matter of months that takes a seasoned trial lawyer years to achieve. Many court personnel: judges, prosecutors, clerks, and court officers, who have seen hundreds (if not thousands) of lawyers, pulled me aside and spoke very highly not just of her advocacy and zealous representation of her clients, but more importantly, of her decency, respectful demeanor, and humanity which influenced others around her to respond in kind.”
Best of luck to Alex and Lisa as they embark on the next stage of their careers!
In addition to volunteering with the Harvard Prison Legal Assistance Project (PLAP) her 1L year, Lena has worked at least 20 hours per week at the Harvard Legal Aid Bureau during her 2L and 3L years. By transforming the Bureau’s weekly housing eviction community education program, she had a great impact on improving the services to pro se litigants, 95% of whom have no representation in housing court.
Lena was also awarded pro bono hours for her 1L summer at the Public Counsel Law Center; her 2L summer at both the American Civil Liberties Union of Northern California and the Western Center on Law and Poverty; and her volunteer work at the Sargent Shriver National Center on Poverty Law working on the Ensuring Success in Schools Act. She will use her HLS Public Service Venture Fund Fellowship to work at the Shriver Center after graduation.
The Andrew L. Kaufman Pro Bono Service Award is granted each year in honor of Professor Andrew Kaufman who has been instrumental in creating and supporting the Pro Bono Service Program at HLS. The J.D. student in the graduating class who performs the highest number of pro bono service hours receives the award and an honorarium. The Office of Clinical and Pro Bono Programs annually determines the winner based on records of total completed pro bono hours submitted by students.
Students who are waitlisted for a clinic should monitor their HLS email through Fri, June 28 at 11:59pm for waitlist offers. Students will have 48 hours to respond to an offer before it expires and the next person on the list is contacted.
The waitlist re-opens at 8am on Mon, Aug 19 and continues through Fri, Sep 13. During this second round of waitlist processing, offers expire after 24 hours.