Archived Newsletter: Volume IV - Issue II

Letter from the Director

 

Dear Friends of HNMCP,

The summer of 2011 is one of transition for HNMCP.  We will be welcoming two talented new members to our team while wishing fond farewells to two others.

I am pleased to announce that Rory Van Loo ’07 will be joining us in the newly created role of Assistant Director. Rory brings with him a wealth of experience in consulting at McKinsey & Co., and comes to us most recently from Washington, DC where he worked closely with HLS Professor Elizabeth Warren to build the new Consumer Financial Protection Bureau. He will work to grow clinical offerings in mediation as well as teach in several classes.

I am also delighted to welcome Chad Carr ’06 as HNMCP’s new Clinical Instructor and Lecturer on Law. Chad has taught dispute resolution at the University of Oregon, the University of Vermont, and Georgetown University, served on the board of the Community Dispute Settlement Center, and worked at Ropes & Gray in Boston. To read more about Rory and Chad, please see our article about them later in this newsletter.

Sadly, this summer will also marks the departure of our beloved and exceedingly valuable colleague Stephan Sonnenberg ’06. Stephan has been indispensable in helping to build HNMCP over the past four years. His entrepreneurial spirit, work ethic, and never-ceasing care for his colleagues and his students are qualities that we will miss but hope to preserve as Stephan leaves us.   While we will miss Stephan enormously, I’m simply delighted to share that Stephan will be moving west to help build Stanford Law School’s new International Human Rights and Conflict Resolution Clinic.  Our loss is Stanford’s gain and it is exciting to see one of our own graduates and former clinical instructors moving into such an important and influential role at a peer institution. We will miss him enormously, but wish him the best of luck, confident he will do great things at Stanford.

Departing too this summer is HNMCP Associate Toby Berkman ’10.  Toby has worked closely with me during the past year on a number of special projects for HNMCP, including the creation of a new instructional video that we hope to release early this fall. We will miss his sense of humor and his creativity. In September, he will begin a clerkship with The Honorable Denise L. Cote in the U.S. District Court for the Southern District of New York.

In this newsletter, we detail some of the exciting clinical projects on which our students have been working this semester both in the U.S. and abroad with special profiles on Sonia Vallabh ’11, who worked on our project with the Regional Court of Sofia, Bulgaria, and Rasmus Naeye LLM ’11, who worked on our project with the American Red Cross.

We also feature an interview with a fall semester client, Dr. Howard Gadlin of the National Institute of Health (NIH), and we catch up with clinic alumna Amy Gordon ̕06, now a JAG lawyer with the U.S. Army stationed in Iraq.

The past few months have been both busy and gratifying. HNMCP received national recognition for its curriculum from the International Institute for Conflict Prevention and Resolution by winning its 2010 Award for Problem Solving in the Law School Curriculum. In addition, throughout the winter and spring we have been trying our hand at filmmaking after receiving sponsorship from WilmerHale to produce a film about negotiation, featuring Boston-area lawyers. This is a project I have long wanted to develop and we anticipate wrapping the project summer to use in the classroom next school year.

The Clinic continues to maintain a connection with the broader world of scholarship and practice.  In March, the Clinic co-sponsored the symposium “The Criminalization of Conflict Resolution: Holder v. Humanitarian Law Project’s Impact on ADR and Human Rights Work.”  Stephan helped organize the event. He also saw published this year a white paper generated from a year-long clinic project with Hewlett Packard and the Corporate Social Responsibility Initiative at Harvard’s Kennedy School of Government that he supervised in 2009-2010. We’re also excited by a collaborative learning project that students from the Negotiation Workshop engaged in with students at the Harvard Business School and are happy to be celebrating the 30^th anniversary of the Harvard Mediation Program, where many of our students and staff have trained.

For most academics, summer is a quiet time; for those of us HNMCP, we remain busy with a host of projects.  I hope your summer will be an optimal combination of fun and productivity.  Have a great summer!

Best wishes,

 

 

 

Robert C. Bordone
Thaddeaus R. Beal Clinical Professor
Director, Harvard Negotiation & Mediation Clinical Program 

Student Spotlight – Sonjia Vallabh ’11

Given the range of clinic options available at Harvard Law School, why did you choose the Negotiation & Mediation Clinical Program (HNMCP)?

I’ve already been involved with the ADR program at the law school, through the Harvard Mediation Program and the Negotiation Workshop, so I knew what I was signing up for when I chose the HNMCP clinic. I knew that it would be a supportive and stimulating environment, and that I would like the people, and that it would involve a different kind of work and thinking than the rest of my courses. I’ve tried to take a skill-building approach to my time at HLS, so one thing that really appealed to me about this clinic was that I would get to try working as a consultant: managing client relationships, diagnosing their system, and designing and presenting a final product.

What was it about that the Bulgaria project that attracted you?

Having spent a lot of time with the Harvard Mediation Program at HLS, the idea of analyzing a court-annexed mediation program in such a different cultural setting was intriguing. And the prospect of getting a chance to travel to Bulgaria also didn’t hurt!

What have you found most challenging about the work?

I would say the biggest challenge has been trying to package our project into a semester-long time line. I suppose it’s a common property of consulting work generally that you can’t count on knowing the client’s organization inside and out before suddenly it’s time to start making recommendations. I see this as a stark contrast with strictly academic work at HLS, where obsessive thoroughness is more the norm. There is a certain efficiency/bottom-line to real world work which I value but which is also challenging to adapt to at first.

What have the unexpected rewards been?

I think one major reward has been the gratitude with which all of our work has been received. Our clients are devoted to improving their mediation center, but they’re also crazy busy. I think it would have been difficult for them to find the time to do a comprehensive review on their own. So even relatively simple tasks that we are able to do for them—researching other mediation centers, cataloging the program’s resources—feel like a huge help.

How do you think this experience will inform your future work?

I’ve considered working in consulting as one option for the future, and I think the analytical tools we developed in the clinic would be very apt to that setting. More generally, I think that there’s real value to coming in from the outside and looking at a workplace from a systems perspective. Sometimes it’s easier to see patterns, or inefficiencies, or room for improvement in a new context than in your own life or work. But hopefully you bring some of these insights back with you. I also think that opportunities to work on a team are few and far between in law school, but incredibly valuable going forward. One of my major goals for the future is to work with people, which sounds simple, but it’s actually not such an easy priority to meet in many professional settings. HNMCP really caters to this interest.  Working closely with Stephan (Sonnenberg) and Emil (Andersson) has been great—the clinic is very deliberate and thoughtful about what makes for effective teamwork, which is a sensibility I hope to take with me into my professional life.

Prior to coming to HLS, Vallabh worked in publishing in San Francisco. She has spent the last three years focusing on alternative dispute resolution, and land use and environmental law. Outside of school, she loves cooking, bookstores, cities, and being outside. One of her greatest accomplishments in life so far is getting eight hours of sleep every night of law school.

 

 

Spring 2011 Projects

 

This spring, HNMCP worked with four wonderful clients. All of this spring’s projects focused in some way or another on the evaluation or construction of dispute management systems, from the development of a strategic and long term growth plan for an Ombuds Office (American Red Cross), to a conflict management system for a congregation (First Unitarian Society in Newton), to an evaluation of court-annexed mediation programs across the EU (Regional Court of Sofia, Bulgaria), to a review of a federal ADR system (Equal Employment Opportunity Commission). Each of HNMCP’s four projects has provided students with a unique set of challenges.

In 2007, the American Red Cross launched a new Ombudsman Office, which has enjoyed a steady increase in usage ever since. Today, the Office is turning its attention away from the management of its initial growth to develop a more strategic and long-term plan that builds the practice, scope, and quality of the program. The Ombudsman asked HNMCP to research what different stakeholders need and expect from the Office, and how to measure systematically whether it is meeting those expectations.

To read more specifics on this project, click here.

 

This project partnered HNMCP students with a Unitarian Universalist congregation in the greater Boston area to design a new conflict management system for the congregation. The First Unitarian Society of Newton works hard to create a spiritually nurturing and socially responsive environment and as such, leadership wanted to deal more proactively with conflict. HNMCP used focus groups and one-on-one interviews to understand the narrative of how the congregation experiences and deals with conflict and presented a training on how to approach difficult conversations.

To read more specifics on this project, click here.

 

The Regional Court of Sofia is the largest and busiest court in Bulgaria. In 2009, the Court launched an effort to develop a court-annexed mediation program that would help alleviate the court’s backlog. To address concerns about quality assurance and professionalism in mediators, HNMCP conducted a comprehensive survey of court-annexed mediation programs in other EU countries and the United States and worked with stakeholders in the Sofia court system to design a mediator quality-control system to be managed by the Court.

To read more specifics on this project, click here.

 

Since 2003, the EEOC has been promoting the use of its one-stop ADR program for the resolution of a variety of workplace disputes. The EEOC engaged HNMCP to find out if its staff are using the program as much as they could be, if the program’s outreach efforts are effective, and if staff understand the program’s role.  Our students conducted an assessment to generate proposals for how to improve the system in line with the EEOC’s institutional priorities.

To read more specifics on this project, click here.

 

 

Client Spotlight – Dr. Howard Gadlin

DR. HOWARD GADLIN
Ombudsman, National Institutes of Health

I originally learned about HNMCP through my professional acquaintance with Professor Bob Bordone. I’ve been a guest lecturer in his Dispute Systems Design class for several years and I am a big fan of him and of his work. When I was at UCLA I had great success working with a team of students interested in addressing racial, ethnic and other identity-based disputes, so I knew firsthand how effective students could be, especially when working on something that matters to them. I was intrigued to work with a student team again on the first formal evaluationof the NIH Office of the Ombudsman since the program piloted in 1998. There is always a glimmer of concern that the demands of students’ coursework might interfere with a project, but that turned out not to be a problem at all with the HNMCP team.

There were two major challenges for the project. The first was the relatively brief time Rachel (Krol ̕ 11) and Diana (Tomeszkso ̕ 11) had to develop an understanding of a complex and opaque federal agency of 20,000 employees. The second was to find a way to elicit the cooperation of a large enough number of NIH people to provide a meaningful evaluation of our program. Staff at NIH were much more responsive than I had expected given they are bombarded regularly with emails, surveys, mandatory trainings, and an assortment of inquiries. I worried that they just might not have the time or desire to engage with the students. I was happily wrong.

The biggest surprise of the work was the value of a piece of the evaluation the students proposed that, initially, I had not thought would be worthwhile—focus groups composed of people who had never used our office. It turned out that the results of those focus groups was one of the most useful parts of the project. The major insight coming out of all the work was that there is an ongoing concern about confidentiality at NIH, even in relation to our office, where we are scrupulous about protecting confidentiality.

Post-evaluation, we are tremendously energized, filled with ideas about new projects to pursue, many of which we have already begun to implement. We’ve modified our website and office brochure and increased our presence in orientation sessions for new staff and post-docs. The evaluation also has served as an excellent introduction to our program for two new staff members who have joined The Office since we received the final report. I foresee that we will experience the effects of the report far into the future.

Student Spotlight: Rasmus Naeye LLM ’11

 

Given the range of clinic options available at Harvard Law School, why did you choose the Negotiation & Mediation Clinical Program (HNMCP)?

I identified HNMCP as an opportunity to work on a project with professional clients supported by an extremely resourceful teaching team. In addition, I realized that the perspectives and knowledge I am gaining from the clinic would be directly applicable to the other courses I am taking this spring at the law school and at the Kennedy School in constitutional law, international law and leadership theory. Although I am sure that all clinics at the law school offer interesting learning experiences, the Negotiation and Mediation Clinic was the perfect match for me.

 

What was it about that the American Red Cross (ARC) project that attracted you?

The Ombudsman Office serves not only the American Red Cross but also the external stakeholder organizations with whom the ARC regularly works, as well as the general public. I think the overall complexity of this organization, in combination with the sophistication of the client representatives in the Ombudsman Office, was what made this project so appealing to me. An additional benefit is that I get to contribute to an organization whose work I greatly admire.

What have you found most challenging about the work?

From time to time it has been challenging to get the whole team of students and client representatives together, and find enough time to have the discussions we needed to. However, since we started out the project with a half-day meeting in person with our client, we got to know each other early, which I think helped a lot. Another challenge has been to align our hopes and aspirations for this project with the time constraints that we all face.

What have been the unexpected rewards?

It has been extremely rewarding to experience how well the work and cooperation in our student team went. It is a true blessing to work in a team that is passionate about a project and share an interest in the issues. My partners for this project, Tian Tian  ̕11 and Liz Alspector  ̕11, have simply been great. During Spring Break the team was literally working around the clock on this project as we were spread across the globe in three different time zones!

How do you think this experience will inform your future work?

Before coming to Harvard I worked for a Swedish law firm for two-and-a-half years. Although I would now like to transition into a public interest career, this project has inspired me to hang on to the “consultant mode” of thinking and approaching problems. Hopefully my previous work experience and this project will enable me to be an efficient and successful civil servant in the future and I will be able to draw on the experience of consulting both in the private sector and in relation to an NGO like the American Red Cross.

What are your other career goals/plans for the near future?

When I graduate I will be moving to Ankara in Turkey to work with a non-governmental organization in the human rights field. After the general elections in Turkey on June 12^th, 2011, a constitutional negotiation is expected to unfold. The stakes are high and this organization hopes to be one of the key stakeholders in this negotiation. Hopefully my experience from HNMCP will enable me to make a valuable contribution to their effort.

Prior to his master studies at HLS, Naeye was an associate of Mannheimer Swartling, a leading law firm in the Northern Europe, specializing in European Union law and serving at the firm’s Stockholm and Brussels offices. This summer Rasmus is moving to Ankara, Turkey, where he will do work with a human rights organization and try to learn the language.

 

 

Alumna Spotlight: Amy Gordon ’08

 

What kinds of negotiation-related activities did you pursue at HLS?

I took every class I could—Negotiation Workshop, Dispute Systems Design, International Negotiation, served as co-Chair of the Harvard Negotiators, and was a teaching assistant in the Spring Negotiation Workshop. My clinical project with HNMCP was designing a dispute resolution system to address the harmful downriver effects in Cambodia of a dam built in Vietnam. I worked with the Consensus Building Institute and also with Mercy Corps to develop a dispute resolution system addressing land disputes. I later interned with Mercy Corps in Sri Lanka, writing an evaluation of the Humanitarian Negotiation with Non-State Actors Training Program.

What were the most important skills you learned through your negotiation training and how have they been useful?

Communication skills, such as active listening. And the value of preparation, of thinking through the interests behind the positions. When I spoke with the Judge Advocate General’s (JAG) Personnel Office about where I wanted to be stationed for my first post, I did a lot of preparation and focused on the interests behind my choices.  As a result, I was given my first choice.

I also learned the importance of always putting yourself in the other person’s shoes, thinking about issues from different perspectives. This has been of tremendous help in the Army, where you have people from different backgrounds, education and skill levels, interests and religions, all working together in an intense environment

What are your plans after your tour of duty ends?

After serving in Iraq I will return to Schofield Barracks, Hawaii with the 25th Infantry Division Headquarters. I will continue my work in the Office of the Staff Judge Advocate. At the moment I am focusing on administrative law but will likely be rotated to a new position when we return to Hawaii. My commitment to the Army ends in July 2013. At this point I am undecided about whether I will remain in the Army after my initial term ends.

How have you put your negotiation skills into action?

I used a lot of negotiation skills while working as a Legal Assistance attorney for my first four months in JAG, primarily to help me communicate with and assist soldiers needing help. I attended the Rule of Law course at the JAG school in preparation for deployment. We talked a lot about conflict resolution and traditional methods of dispute resolution in Iraq and Afghanistan and I was able to contribute to the discussion and provide ideas for projects and resources. I also use these skills on a daily basis with people both inside and outside of my office and I am hoping to conduct a basic negotiation training. I am confident that whatever I do in the future, these skills will be helpful.

Gordon received her BA in Political Science, with a concentration in international relations, from Stanford University and subsequently taught English in a public elementary school in southern Costa Rica, where she also worked at a tour company. She received a Masters in International Law and Human Rights from U.N. University for Peace in Costa Rica and worked as a Peace Corps Volunteer in Samoa. She received her JD from Harvard Law School in 2008. She joined the Army in July 2009 and was deployed to Iraq in February 2011.

 

 

Goings and Comings

 

It is with great sadness that we say goodbye to Clinical Instructor Stephan Sonnenberg  ’06, who has been with HNMCP since its earliest days. As his second term as Clinical Instructor and Lecturer on Law comes to a close, Sonnenberg prepares to move to Palo Alto, CA to build  the International Human Rights and Conflict Resolution Clinic at Stanford University with Jim Cavallaro, former Clinical Professor and Executive Director of the Human Rights Program at HLS. While at HNMCP, Sonnenberg led eighteen clinical projects that took him and his students to such far-ranging places as Nigeria, Bulgaria, the Thailand/Burma border, and China. He has just finalized a white paper summarizing two-semester long projects he supervised with Hewlett Packard and the Corporate Social Responsibility Initiative. “Stephan has been a tremendous asset to the Negotiation and Mediation Clinical Program, bringing creativity to the projects and a deep dedication to the students. We will miss his boundless good humor and all that he has done for HLS,” noted Lisa Dealy, Assistant Dean of Clinical and Pro Bono Programs. HNMCP Director Bob Bordone ’97 observed that, “So much of what HNMCP is today is because of Stephan’s diligence, hard work, and devotion to his students and this program.  I know he will do great things at Stanford and I am confident that we will continue to reap the fruits of his good work at Harvard for years to come.” In addition to teaching the Negotiation Workshop and Clinic-related seminars, he also co-taught a clinical seminar on Civilian Protection During Times of Armed Conflict that brought together students from both HNMCP and the Human Rights Clinic. Sonnenberg’s focus is the intersection of conflict resolution with the promotion of human rights, and he is excited to bring his clinical experience at HNMCP to bear in this arena at Stanford. “I will certainly miss HNMCP,” says Sonnenberg, “which I have seen evolve from being a place with a lot of enthusiasm and a great vision into a place where that vision has become the daily reality; a place where HLS students regularly get top-level support and mentoring as they carry out what I consider to be some of the most exciting dispute management projects anywhere when it comes to clinical legal education.”

 

HNMCP has undergone tremendous growth since its founding almost five years ago and 2011 will see another exciting new stage in the clinic’s expansion as we welcome Rory Van Loo  ’07 in the newly created position of Assistant Director. Rory Van Loo comes to HNMCP most recently from Washington, D.C. where he has been assisting Harvard Law School Professor Elizabeth Warren to set up the newly created Consumer Financial Protection Bureau. Prior to this, Van Loo worked at the global management consulting firm of McKinsey & Company, managing associates and client relationships—including a task force of Fortune 500 CEOs—and helping senior management redesign their organizations. During his time as a student at HLS, Van Loo served as a teaching assistant for both the Negotiation Workshop and for the Harvard Negotiation Institute and for the past three years has lectured and facilitated negotiation exercises for graduate students at the ESSEC Business School in Paris. He has published in the Harvard Law Review, the Christian Science Monitor, the San Francisco Chronicle, and the Albany Law Review, among other publications. He graduated magna cum laude from Pomona College with a degree in Science, Technology, and Society and spent a year as a Fellow with the Thomas J. Watson Foundation before earning his JD magna cum laude from HLS. Van Loo will co-teach a new course—Advanced Negotiation: Multiparty Negotiation, Group Decision Making, and Special Dispute Management Processes—with Prof. Bordone in the fall semester and will teach the Dispute Systems Design in the spring semester. He will also work on expanding the clinic’s engagement in areas of mediation. “I’m looking forward to welcoming Rory as Assistant Director. He will be an excellent addition to the Clinic as it continues to grow and develop,” remarked Lisa Dealy, Assistant Dean for Clinical and Pro Bono Programs at HLS. “I’m grateful that we were able to persuade Rory to join us at HNMCP.  His tremendous analytical firepower, his highly-refined emotional intelligence, his deep experience as a manager, and his sterling quality of character will provide inspiration and leadership to both our students and to those of us who work with him on the HNMCP team.”

 

HNMCP also welcomes Chad Carr  ’06 as its newest Clinical Instructor and Lecturer on Law. Carr has been actively involved in the field of dispute resolution, both personally and professionally, since law school. He has taught ADR as a visiting professor at the University of Oregon Law School, the Vermont Law School, and as an adjunct professor at the Georgetown University Law Center. He has served on the board of the of the Community Dispute Settlement Center in Cambridge, Mass., where he chaired the Youth and School strategic planning committee and developed a targeted plan for implementing a curriculum focused on empowering youth with these skills. In addition, Carr spent three years at Ropes & Gray, LLP in Boston, assisting large corporations to structure major transactions, including debt financing, acquisitions, and fund formations. Most recently Carr worked as a research associate at the Harvard Business School where he wrote cases, articles, and technical notes. Recent publications include “Remedies for Patent Infringement Under U.S. Law,” “The Profession of the Law,” and “Law, Legal Systems and the Rule of Law.” Carr received his JD from Harvard Law School in 2006 and his BA in economics from the College of William and Mary, where he graduated Phi Beta Kappa. He served as a law clerk for the Honorable Patti B. Saris of the U.S. District Court for the District of Massachusetts. In his free time he tutors inner-city high school students and races with the Cambridge Running Club. Carr will supervise two clinical projects each semester, as well as serve on the teaching team for the Law School’s intensive Spring Negotiation Workshop. In the Fall of 2012, Carr expects to teach his own Negotiation and Mediation Clinical Seminar. “I’m delighted that Chad will be returning to Harvard to work in the Negotiation & Mediation Clinic,” commented Prof. Robert Bordone, Director of HNMCP. “At both Georgetown University Law Center and the University of Oregon, Chad was a beloved teacher and mentor. His passion for teaching and his commitment to students combined with his deep understanding of negotiation and mediation make him the perfect addition to our team. I look forward to collaborating with him to strengthen our clinical program in the years ahead.”

 

HNMCP receives the International Institute for Conflict Prevention & Resolution’s 2010 Award for Problem Solving in the Law School Curriculum

 

The International Institute for Conflict Prevention and Resolution (CPR) selected the Harvard Negotiation and Mediation Clinical Program (HNMCP) to be the recipient of its 2010 Problem Solving in the Law School Curriculum Award at its annual awards banquet on January 11, 2011 at the New York offices of Fulbright & Jaworski LLP.  The clinic’s director and founder, Professor Robert C. Bordone ’97, traveled to New York to receive the award with HNMCP Associate Tobias Berkman ’10. Speakers and special guests included CPR President and CEO Kathleen Bryan, members of the CPR Board of Directors, and other leaders in the field of Alternative Dispute Resolution (ADR).

After the ceremony, Bordone remarked, “It was extremely gratifying to receive such an honor in only our clinic’s fourth year of existence. I am very proud of the work we’ve done to build our clinic, and thankful for the hard work and expertise of my colleagues in helping to make this happen.”

The CPR award in this category is for effective teaching of problem solving theory and practice in any law school during either of the preceding two academic years. Criteria for evaluation included innovation in teaching problem solving; substantive and pedagogical strength; ability to be adapted by other law teachers and schools; and other distinguishing or particularly meritorious features of the course or clinic.

Bordone is the Thaddeus R. Beal Clinical Professor of Law at Harvard Law School and the lead instructor of Harvard Law School’s Spring Negotiation Workshop. In 2007 he received the Albert Sacks-Paul Freund Teaching Award at Harvard Law School, presented annually by the student body to a single faculty member for teaching excellence and mentorship of students. Bordone often works as a professional consultant, facilitator and scholar in the field of negotiation and dispute management. His practice spans the public, private, domestic, and international sectors and has included clients such as Coca Cola, The Boston Symphony Orchestra, and the International Criminal Court. With Nancy Rogers, Craig McEwen, and Frank E.A. Sander, Bordone is currently writing Designing Systems and Creating Processes for the Effective Management of Conflict , a new text on problem-solving and dispute systems design. The book will be published by Aspen in 2012.

“Bob has created a unique and innovative clinic, which expands the traditional simulation model into an actual practice consulting with clients,” said Lisa Dealy, Assistant Dean of Clinical and Pro Bono Programs at Harvard Law School. “Clinical students are involved in every step of the process; they graduate from the clinic as skilled negotiators and they work world-wide replicating Bob’s clinic model.”

Bordone also nominated the winning paper in the Original Student Article or Paper category for the outstanding paper prepared for courses requiring papers as substantial part of grade. Maria Banda ’10 and John Oppermann ’10 are the authors of the winning paper, “Building a Latin American Coalition on Forests: Negotiation Barriers and Opportunities.”

The CPR Institute is an independent, nonprofit think tank that promotes innovation in commercial dispute prevention and resolution. By harnessing the collective expertise of leading minds in ADR and benchmarking best practices, it is the resource of choice for multinational corporations with billions of dollars at risk. CPR is also a leading online destination for lawyers seeking superior arbitrators and mediators and practical ADR resources and solutions.

 

 

Dispute Resolution in Egyptian Microfinance Markets

 

A few short weeks before the eyes of the world turned to Egypt and the anti-government uprisings there, HNMCP students and staff were on the ground investigating dispute resolution in the microfinance industry, a relatively small but growing area for Egypt with a huge potential to improve the economic situation for many people there.

Last fall, HNMCP was engaged by the International Development Law Organization (IDLO) to look into consumer protection issues, and in particular, dispute resolution, in the Egyptian microfinance market.  The microfinance market is the market for small or “micro” loans with values ranging from a few to a few hundred U.S. dollars and having repayment terms ranging from one day to six months. The clients for microfinance services are typically poorer people who run small businesses or groups of people who work together to create and sell consumer products.  Currently only a small percentage of the potential market for microcredit in Egypt is currently tapped, although the number is anticipated to grow, with some sources speculating that microfinance will be an essential part of Egypt’s future economic development.

The students’ project encompassed the entire academic year. In the fall semester, the students conducted desk research and prepared for a field trip to Egypt taken in January. In the spring semester, the students collated the data they gathered in Egypt and wrote their report. While in Egypt, the students met with officials from a range of government and non-governmental organizations, alternative dispute resolution centers, and lending institutions. The students also conducted focus groups with microfinance borrowers and participated in a round-table discussion at the Library of Alexandria with Egyptian judges and students from the legal clinic at the University of Alexandria.

The protection of micro-loan consumers turned out to be a timely issue for a clinical project given the large scale dissatisfaction with economic conditions and treatment by government and other institutions revealed in January’s protests.  Although the students fortunately did not encounter any protests firsthand, their research revealed frustration on the part of many borrowers with their treatment by microfinance lenders.

Based on their research, the students came up with a number of recommendations for improving conditions for borrowers through the use of alternative dispute resolution methods such as mediation or arbitration. The recommendations contained a number of smaller, practical proposals as well as more ambitious projects. Jeremy McClane ’02, HNMCP Clinical Instructor and Lecturer on Law commented, “Egypt is in a period of great change, and it ripe to make reforms in the ways that consumers are treated and enhance the potential for economic development.  These students have taken an important step in starting to think about ways in which those reforms could be made.”

 

 

Hewlett Packard and the Corporate Social Responsibility Initiative

 

Over the course of the 2009/2010 academic year, HNMCP partnered with Hewlett Packard (HP) and the Corporate Social Responsibility Initiative (CSRI) at the Harvard Kennedy School of Government to research and help find ways for workers at two electronics factories in southern China to resolve their disputes. HNMCP also investigated whether those dispute resolution practices changed subsequent to an effort by HP to improve the quality of worker grievance systems at its various supplier factories worldwide. The purpose of HNMCP’s research was twofold: 1) to compare the grievance mechanisms at each factory against a set of seven principles proposed in 2008 by Prof. John Ruggie, Special Representative of the United Nations Secretary-General (SRSG) for Business and Human Rights; and 2) to comment on the SRSG’s Principles themselves.

HNMCP’s collaboration is an adjunct to CSRI’s four “Grievance Mechanisms Pilot Projects,” each of which involves a significant global corporation operating in a different business sector. HNMCP’s effort unfolded in two stages. Our Fall ‘09 semester project evaluated the impact of HP’s efforts and provided management at the two supplier factories with specific feedback about the effectiveness and rights-compatibility of their worker grievance mechanisms. Our Spring ’10 project brought together representatives from HP, Chinese NGOs focusing on corporate social responsibility, management, and workers in an effort to jointly address some of the shortcomings identified at one of those factories. From this project, Clinical Instructor Stephan Sonnenberg ’06 wrote a white paper, “Assessment of the Grievance Systems at Delta & Chicony Analysis and Recommendations for Future Action,” which was included in a larger report produced by the CSRI, “Piloting Principles for Effective Company-Stakeholder Grievance Mechanisms: A Report of Lessons Learned.”

To read the CSRI report, click here. The contribution by Stephan Sonnenberg ’06 on behalf of HNMCP begins on page 77.

 

 

HNMCP teams up with WilmerHale on new pedagogical tool

 

For the first time in its short history, HNMCP is entering the business of filmmaking.

This summer, Professor Bordone ’97 and HNMCP Associate Toby Berkman ’10 will be completing work on a negotiation film project.  The project represents a collaboration among HNMCP, Harvard Law School Media Services, and the law firm WilmerHale.

It features Boston-area attorneys negotiating the “global access” provision of a technology license. Once it is completed, the film will be available as a teaching tool in Harvard Law School’s Negotiation Workshop, and will be available for purchase by outside groups. “Working on this film has been a ton of fun,” Bordone said. “The attorneys with whom we have worked have been incredibly professional and generous with their time.  We are particularly grateful to WilmerHale for funding the project, and to the Law School’s Media Services department for devoting so many hours of their time filming and editing. We hope that the film turns into a valuable learning tool for years to come.”

 

The film itself will include unscripted footage of attorneys negotiating and then reviewing their negotiation with Professor Bordone. By the time filming is complete, Bordone and Berkman will have compiled more than twenty hours of high definition footage.

 

“It was very important to us that the negotiations and the reviews be unscripted,” Professor Bordone said. “We want to capture these attorneys’ real, unfiltered reactions in the moment to make it as realistic as possible.”

According to Bordone, the genesis of the project was the success of the new negotiation simulation “Iqbal’s Big Venture” in the HLS Negotiation Workshop this spring. The new simulation, co-authored by Bordone and Berkman, proved to be one of the more poplar simulations in the course.

“We knew the time was ripe to make a new film, and then ‘Iqbal’s Big Venture’ became such a success in the spring, we just decided to go ahead and make it happen,” Bordone said.

From there, Berkman and Bordone began recruiting attorney volunteers to appear in the film. Attorneys from WilmerHale and Choate, Hall & Stewart volunteered, as did licensing professionals from Partners HealthCare. WilmerHale agreed to fund the project, and HLS Media Services agreed to do the video production. Filming has been taking place on the HLS campus throughout the spring and summer.t captions under this pic identifying us.

As of June 2012, a beta version of this video is now available for use in the classroom. Please visit the Harvard Law School Case Studies site.

 

 

 

Holder vs. Humanitarian Law Project

 

By Carrie O’Neil ’11

Is it a criminal act to engage in human rights and conflict resolution training with, or provide humanitarian assistance to, groups that are on the U.S. State Department’s list of foreign terrorist organizations (FTOs)? How do we balance global safety while supporting the work of peace-builders and negotiators?

These questions were addressed on March 25, 2011, at the Criminalization of Conflict Resolution Symposium at Harvard Law School. The event convened panelists to discuss the impact of the Supreme Court case Holder vs. Humanitarian Law Project on alternative dispute resolution and human rights work. The event was presented by the Harvard Negotiation & Mediation Clinical Program (HNMCP), the Harvard Negotiation Law Review (HNLR), and the Program on Negotiation (PON), and was sponsored by international law firm Millbank, Tweed, Hadley & McCloy LLP. Experts with legal, human rights, and conflict resolution backgrounds discussed various aspect of the potential fallout from this decision, ranging from First Amendment issues to the potential criminalization of peacemaking efforts, from the chilling effects on journalists and charities to the impact on global election monitoring, as well as an examination of the nature of claimed identities and reasons for the use of violence.

Stephan Sonnenberg ’06, Clinical Instructor at HNMCP and Lecturer on Law at Harvard Law School, opened the conference by framing the discussion through the example of South Africa in the 1980s, when the U.S. debated whether or not to engage with the African National Congress (ANC) because of its ties to the Communist Party. PON leaders like Roger Fisher consulted with the ANC about how to engage the Apartheid government. If the situation had happened under the Holder vs. Humanitarian Law Project (H v. HLP) decision, would PON still have engaged or would it have been too risky? And with regards to H v. HLP, what questions are settled and which remain open? How can those engaged in conflict resolution and human rights work protect themselves while creating change in accordance with this decision? What are the avenues for advocacy?

The first panel of the symposium explored the legal issues and parameters involved in the case. The speakers were Amanda Shanor of the Center of National Security and the Law at Georgetown University, Martha A. Field, the Langdell Professor of Law at Harvard Law School, and Robert H. Mnookin, Williston Professor of Law at Harvard Law School and Chair of the Steering Committee for the Program on Negotiation.

Amanda Shanor provided relevant background on the case and talked about its impact on the fabric of international law on speech and association as well as its chilling effect on vital human rights and conflict resolution development work. She highlighted questions that may face future litigative or legislative pressure, such as where does the Constitution draws the line between independent and coordinated speech? Is The New York Times engaging in independent or coordinated speech when it publishes an op-ed written by a Hamas leader? Is Jimmy Carter engaged in independent advocacy or a crime when he conducts election monitoring in Palestine when there are Hamas candidates on the ballot? What if a lawyer files an amicus brief on behalf of a terrorist organization? Because the court did not determine whether or not the government could criminalize coordinated advocacy, Shanor believes examples like these are open to both prosecution and potential First Amendment challenges.

Martha Field  took up the examination of the case as a First Amendment holding, explaining how it fits in with constitutional principles. By raising new issues about how the First Amendment operates in an international setting, the decision asks practical questions about conflict resolution work, which many consider both morally necessary and an instrument in creating a peaceful and just society. Field discussed why upholding the government’s criminal prohibition against teaching and advocacy directed to FTOs is both reasonable and understandable with respect to the court’s jurisprudence of foreign relations and national security. But, Field argued, it is not in keeping with First Amendment jurisprudence, possibly creating a new category of speech outside First Amendment standards. If a terrorist organization was domestic instead of foreign, the issue would be one of free political speech rather than foreign policy, which is not within the scope of the courts. Under H v. HLP, U.S. citizen’s rights to free speech are diminished when dealing with foreign organizations that do not themselves partake of First Amendment freedoms.

Despite the court’s decision, Robert Mnookin focused on the hope that there is much room left for organizations to courageously pursue their peacemaking agendas.  Although there is a new possibility of criminal prosecution around the simple act of facilitating a dialogue between Israelis and Hamas, for example—an argument could be made that such an act would be legitimizing Hamas—Mnookin hopes that this decision will not lead to the criminalization of peacemaking. He warned that if the field is too alarmist about this issue, it risks augmenting the chilling effect of the decision by exaggerating it.

The second panel of the symposium addressed policy implications for practitioners. Speakers included Ralph D. Fertig, Clinical Professor at the University of Southern California School of Social Work and President of the Humanitarian Law Project, Nathan Stock, Assistant Director of the Conflict Resolution Program at The Carter Center, and Ervin Staub, Professor of Psychology and Founding Director of the Psychology of Peace and the Prevention of Violence Program at the University of Massachusetts at Amherst. The panel was moderated by Eileen F. Babbitt, Professor of International Conflict Management Practice at The Fletcher School of International Affairs at Tufts University.

Ralph Fertig compared the implications of his work with the Kurdistan Workers’ Party (PKK) and the origins of H v. HLP. He believes that this decision has had a chilling effect on advocates, reporters and charities doing work across the globe. For example, in Sri Lanka during the tsunami, threat of prosecution under this decision discouraged aid organizations from helping villages under Tamil rule. He encouraged non-violent, direct activism in order to send a message to Congress and the President.

Ervin Staub called the ruling problematic because the U.S. government has tried to stop terrorism mainly through violence and sanctions. He argued that what is needed is a more complex approach to prevention that includes social and psychological interventions with terrorist groups. Some of the conditions that lead a group to terrorism include feelings of unjust treatment, inequality, humiliation, of the perception that enemies are standing in the way of fulfilling ideologies, and of the shaping of identity around experiences of victimization. Staub believes it is important to help people understand the influences that lead to group violence in addition to potential avenues for prevention. Education workshops and encounter sessions with people on “the other side” help with healing, humanization, and empowerment. But where is the space for that post-H v. HLP?

Nathan Stock addressed election monitoring, explaining that contact with FTOs is essential for The Carter Center’s work. Any observation or analysis needs to have contact with all actors involved for the monitoring process to be credible. H v. HLP broadens a set of prohibitions already in place for U.S. government personnel to now include private citizens. The U.S. government has a trend of naming non-state, armed groups as FTOs, leaving them outside of standard diplomacy. Stock believes that an organization like Hamas will not be destroyed by force of arms and a realistic pathway to legitimate political participation is vital. Only political engagement with Hamas will stop the collapse of Palestinian human rights inside the occupied territories and foster a democratically legitimate Palestinian partner that can someday negotiate peace with Israel. In light of the Court’s decision The Carter Center continues to engage in its mission, very cautious of the inherent risks.

In summary, Eileen Babbitt engaged with the premise on which the H v. HLP ruling is based—that the only way to combat terrorism is to delegitimize acts of violence and defeat the perpetrators. It is the assumption that we only use violence when we are forced to do so, but that terrorists use violence because it is in their nature. The creation of a monolithic “other “fosters an ideology that the only way to defeat FTOs is with violence. However, for conflict resolution practitioners, analysis shows that for some groups, violence is instrumental not innate—it is a tool to fulfill the need for respect, acknowledgment, justice and autonomy. Seeing and acknowledging these universal needs allows imaginative ways to engage with these groups and its members, who may be amenable to looking for nonviolent alternatives. Will H v. HLP prevent the vital analysis of, and engagement with, groups that the U.S. government has labeled as FTOs, thereby encouraging the very violence those in our field seek to heal?

 

 

Harvard Mediation Program 30th Anniversary

 

By Elaine McArdle
This article first appeared in the Harvard Law School News

After studying law and mediation in the People’s Republic of China post-college, David G. Seibel ’97 was eager to find the best training possible in alternative dispute resolution. He chose HLS in large part because of the Harvard Mediation Program (HMP), a Student Practice Organization which this year celebrates its 30^th anniversary of training students and community volunteers to mediate disputes in small claims court and other settings.

“I got what I believe is the best practical training and clinical experience in mediation available, and I got to make a lasting positive difference in dozens of lives while still a student,” says Seibel, who went on to co-found and serve as president of the conflict management firm Insight Partners and the non-profit Insight Collaborative, in Boston. “For me, HMP is about passionate trainers, proven pedagogy, extensive real-world supervised experience in both mediation and teaching alternative dispute resolution.”

Seibel, who also teaches an executive education program through the HLS Program on Negotiation, was one of about 85 HMP alumni and friends—including Massachusetts state court magistrates and assistant clerk magistrates—who returned to HLS this month to celebrate the program’s three decades of service. HMP, which has included more than 700 students over the years, was founded in 1981 by Karen Faulkenstein Green ‘81 with the encouragement of Judge John C. Cratsley, an associate justice in the Massachusetts Superior Courts who was her instructor in a clinical course on community courts that he continues to teach today.

The April 9 celebration “was really joyful,” says Maureen “Mo” Griffin, HMP’s administrator, who staffs the program along with Attorney Michael Steinberg, the  advanced case coordinator, and Pril Ellis, a clinical psychologist who supervises HMP members including clinical students enrolled in the mediation course taught by David A. Hoffman ‘84 . “It just felt like a very sincere celebration.”

HMP provides mediation services in about 200 cases a years: in small claims courts, between tenants who live in public housing, between landlords and tenants, and in a pilot program in juvenile court in Boston.  Close to 50 HLS student members go through its intensive, 32-hour training program each year, learning comprehensive theory and skills for effective mediation. Unique among HLS Student Practice Organizations, HMP also includes volunteer community members who are trained: some serve as court liaisons and oversee the student work in small claims court. There are currently about 50 active community members, Griffin says.

In small claims courts, for example, magistrates offer litigants the opportunity to have HMP mediate their disagreements. Students then work with the parties to try to reach an agreement; if successful, they draft a settlement agreement that has the full weight of the court behind it. If mediation doesn’t work, the parties can return to small claims court for a hearing. The process works in a similar way at housing authorities, which manage public housing.

Beginning in August, the HNMCP will welcome Rory Van Loo ’07 as Assistant Director. Part of his mission will be to work with HMP to expand its offerings and to help build the program for its next 30 years.

Mediation is often far more satisfying than litigation because the parties devise their own solution to their conflict, “so both sides might feel it’s more fair,” says Liz Bailey ’12, incoming co-president of HMP along with David Zins ’12. Parties also have the opportunity to air their grievances, which busy magistrates often can’t offer. And, Bailey adds, “You also often have a chance to preserve relationships. Often parties haven’t talked to each other since the initial problem, but used to be friends or business associates. This allows them the potential to fix that.” In the best outcomes, she notes, “People walk out shaking hands. They’re happy.”

Bailey says she joined HMP as a 1L because her mother is a mediator, and because she was drawn by the dynamic presentation on alternative dispute resolution to admitted students by Clinical Professor of Law Robert C. Bordone ‘97, Director of the HLS Negotiation and Mediation Clinical Program, which is associated with HMP. Zins also joined HMP as a 1L.

“HMP, and alternative dispute resolution generally, attracted me as a complement to the traditional, more litigation-based curriculum in the law school,” Zins says, adding, “I also liked the idea of working to help real people resolve their real disputes, even in the first months of my law school career.” His cases have included helping tenants living in close quarters resolve “misunderstandings and annoyances” that didn’t’ rise to the level of legal claims, he says. “HMP’s involvement in their lives helped them find a solution that led to mutual betterment of their situation. The legal system simply could not have achieved this result for them.”

Both Bailey and Zins say that the HMP community is a very friendly one, which has enhanced their HLS experience. “We are a somewhat self-selected group, in that HMPers tend to be agreeable peacemakers,” Zins says. “This can be a refreshing contrast from the Socratic tension of the typical law school classroom.” He also enjoys working with the community volunteers who give him a tie to the broader world outside HLS.

Judge Cratsley, who teaches the popular Judicial Process in the Community Courts clinical course, through which HLS students serve as clerks in Boston-area courts, gave opening remarks at the HMP event. Certificates of appreciation were presented to representatives from the six area small-claims courts—in Quincy, Brookline, Cambridge, Chelsea, Roxbury and Malden—that participate in the program, with a special nod to Quincy, the first court to offer HLS students the opportunity to mediate small claims disputes.

The anniversary event emphasized the benefits of resolving conflicts outside of court, Bailey says. “The diversity of the group [at the celebration] really showed how far-reaching the program has been and how many people it’s touched,” she says.

For Seibel, HMP has had profound impact. It was through HMP that he met his business partner, Patrick McWhinney HDS ’98, with whom he co-founded his conflict resolution company (McWhinney was a Harvard Divinity School student cross-registered in a mediation course taught by Professor Frank E. A. Sander ’52.)

“I am indebted to HMP, and to all the people who have made it thrive for 30 years, for their central role in shaping my life,” Seibel says. “I like to think that through my work as a conflict management professional in the private and public sectors, I am in my small way helping to extend the reach of the Harvard Mediation Program around the world.”

 

 

Cross-school collaboration: HLS Negotiation Workshop students cross the bridge to negotiate with HBS

 

By Elaine McArdle
This article first appeared in the Harvard Law School News

On a raw and rainy winter day in Boston, in a small room at Harvard Business School, two teams of students sit facing each other across a conference table. Each team includes two HBS students playing the roles of corporate executives at major drug companies, and an HLS student acting as their corporate attorney.

To read the rest of the article, click here. 

 

 

Class Notes Spring 2011

 

 

Kristi Jobson ̕ 11 gave birth to Declan on May 23, 2011, weighing 8lbs., 6ozs. Mother and son are doing well.

 

 

 

Stephanie Singer ’10 is thrilled to announce the birth of Samuel Ross Singer on January 31.  “When Bob taught that babies negotiate from day one, he wasn’t kidding!”

 

 

 

 

 

Eloise Pasachoff ’04 has accepted an invitation from the Georgetown University Law Center to join their faculty.