HNMCP Newsletter - Volume VIII - Issue 1
I am writing from my temporary office at the New York University School of Law where I am enjoying my first sabbatical after sixteen years of teaching in both semesters. It’s hard being away from the energy and dynamism of students, faculty, and staff at the Harvard Negotiation & Mediation Clinical Program (HNMCP), but I am thankful for the chance to rejuvenate after many years of hard work building HNMCP, now in its eighth year.
Before escaping the Boston snow for the relative “warmth” of New York, and with the indispensable help of HNMCP Clinical Fellow Sara del Nido ’13, I launched a new blog that features occasional thoughts from me, other members of the HNMCP team, and, most recently, some of our students. Responding to events in Ferguson and New York, this winter we also launched a special series called “Dialogue and Demonstration” on our blog page. I invite you to peruse these entries and I welcome your reactions and comments. Though I will contribute to the blog only sporadically during my sabbatical, I hope that the project will become a way for members of the extended HNMCP community to carry on fruitful conversations about negotiation and mediation both in the world of theory and in the world of practice.
Six projects this fall allowed us to delve deep into the assessment and strengthening of dispute resolution systems in our nation’s government and a state superior court system, as well as assist educational and non-profit organizations hone their individual and collective negotiation skills and tactics.
We have also been busy writing and publishing in the past few months. HNMCP Assistant Director Rachel Viscomi ’01 and I co-wrote two pieces, one for the Dispute Resolution Magazine and one for Negotiation Journal this past summer and fall. In addition, under my supervision, Anna Gressel ’14 wrote a wonderful new multiparty negotiation case, Hesperia that is now available at the HLS Case Studies Center. Sara del Nido, Clinical Instructor and Lecturer on Law Alonzo Emery ’10, and I are also putting the finishing touches on a new case that we hope to launch later this spring.
This past summer we bid farewell to beloved Clinical Instructor Chad Carr ’06, who completed his term and moved just across the Charles River to join our colleagues at Vantage Partners as a Senior Consultant. Filling Chad’s shoes is the able Heather Kulp, who was promoted to the rank of Clinical Instructor and Lecturer on Law after serving for two years as a Clinical Fellow. We are excited to have her now supervising projects and teaching in the Spring “Negotiation Workshop.” In addition to these duties, Heather continues to contribute to the larger field of dispute resolution—the Pepperdine Dispute Resolution Law Journal published Heather’s article “A Tightrope Over Both Your Houses: Ensuring Party Participation and Preserving Mediation’s Core Values in Foreclosure Mediation.”
I am also delighted that Alonzo Emery was named as a Fellow in the National Committee on U.S.–China Relations’ Public Intellectual Program. “As the United States and China become increasingly inter-connected, citizens from these nations will benefit from greater mutual understanding,” notes Alonzo.
In August, we welcomed April Pettit to the HNMCP family as she began her tenure as the “Negotiation Workshop” Coordinator, taking the reins from the amazing Jessica MacDonald who left us to begin her assignment in Lagos, Nigeria working for the U.S. State Department in the foreign service. April is a 2013 graduate of New England School of Law and the former Event Operations Supervisor in the Events Office of HLS.
Finally, Kyle Glover ’10 was appointed a Lecturer on Law to teach the “Negotiation Workshop” this spring. Kyle is a former Chair of Harvard Negotiators and former Vice President of the Harvard Mediation Program. As a student at HLS, Kyle led students’ efforts in lobbying then-Dean Elena Kagan for an expansion of Harvard’s negotiation teaching program. Kyle is currently an associate at Pierce Atwood LLP in Portland, Maine.
I hope the stories in our newsletter give you a taste of the tremendous and ever-growing level of energy and activity at HNMCP. Grateful as I am for a chance to recharge during a sabbatical, I look forward to returning to HLS this summer and building upon the momentum we have created in a number of domains, including expanding our capacity in training lawyers for group facilitation.
We are excited to hear updates—personal and professional—from our alums and our clients. So please keep in touch.
Robert C. Bordone ’97
Thaddeus R. Beal Clinical Professor
Director, Harvard Negotiation & Mediation Clinical Program
The Community Relations Service (CRS) serves as “America’s Peacemaker” for the U.S. Department of Justice, helping local communities address community conflicts and tensions arising from differences of race, color, national origin and other categories. This project will help CRS determine the conflict resolution needs for the nation in light of an expanded mandate from Congress and will provide recommendations on how CRS may position itself to best impact the country in the 21st century.
Read the full project description here.
Kids4Peace (K4P) is a global youth movement that works to end conflict and inspire hope in divided societies around the world by providing youth programming on interfaith dialogue, leadership development and nonviolent action. Challenges can sometimes occur in the planning and on-site implementation of this programming. Students from HNMCP will conduct an assessment of K4P’s internal dispute resolution capacity and make recommendations to improve staff communication, collaboration, and dispute resolution practices.
Read the full project description here.
The Superior Court is a statewide court of general jurisdiction and provides jury trials in civil and criminal cases. HNMCP students will evaluate the settlement judge pilot project, which is part of a developing statewide Felony Case Flow plan. In the pilot, during the early stages of criminal cases, the cases are assessed for referral to the settlement judge. The settlement judge then engages the parties in a process that may open the way to a resolution, including a plea. After the evaluation, students will make recommendations to the Court for how to improve protocols and structure to meet the program’s goals more effectively.
Read the full project description here.
The Sustainability Institute (SI) at Pennsylvania State University was formed by combining several different and dispersed efforts and focuses on bringing together teaching, learning, translation, operations, and communication on critical issues related to sustainability. HNMCP will provide a recommended design for a community/stakeholder engagement process that is scalable and transferable to a number of high‐level resource challenges such as energy planning, climate action planning, and water management involving both the university and the community.
Read the full project description here.
Seeds of Peace (SoP) is a non‐profit organization that inspires and equips young leaders from regions and communities of conflict with the relationships, critical understanding, and skills needed to create positive change and advance lasting peace. Continuing its long and productive relationship with SoP, HNMCP will create and conduct a training for 30‐40 Maine and Syracuse Junior Seeds in mediation, communication, and negotiation to empower and equip them to better leverage their influence, activate their leadership, continue their self‐learning and reflection, and harness the power of their own identities and relationships in their work to transform their communities.
Read the full project description here.
TBWA is a top 10 global advertising agency network. TBWA strives to work with a diverse supplier chain and to meet the requests of clients who require that a percentage of the supplier chain be certified Multicultural\Women Business Enterprises (MWBEs). HNMCP students will review the certification processes, conduct a stakeholder assessment with diverse suppliers that certify, those that do not, and those that do not know about certification, and give strategic negotiation advice about how to address client, supplier, and TBWA interests around engaging MWBEs.
Read the full project description here.
By Laurence Hull ’15
While this may beggar belief, my immersion in the world of alternative dispute resolution (ADR) is a recent phenomenon—but one that has been truly incredible. My interest in ADR originally stemmed from my interest in international relations and conflict resolution. Specifically, conflict resolution theory introduced me to the idea of “ripeness”—that the effectiveness of peace initiatives is often a matter of timing and circumstances as much as substantive measures. To me, this naturally raised the question of how we can induce that ripeness rather than letting the death toll and other damage rise any further. Throughout my undergraduate career at Morehouse College, I wrote reams of papers on subjects such as peacekeeping reform, and the role of “justice vs. peace” in post-conflict transitions, searching for an answer to this question. While my ADR experiences at Harvard have exposed me to fields beyond this question, my focus remains on understanding how practitioners and advocates can help parties come to “peaceful” accords.
My first exposure to ADR at Harvard was through a one-day training session for Harvard Negotiators during fall of 2012,where we were given an introduction to interest-based negotiation. As an Englishman and long suffering fan of Arsenal football club, imagine my glee when we dove head first into a simulation involving Brazilian soccer! The experience sparked my interest in the different ADR offerings at Harvard: I honed my practical negotiation skills with Harvard Negotiators, joined the Harvard Negotiation Law Review (where I am now co-Editor-in-Chief) and took the “Negotiation Workshop” that spring.
In the fall of 2013, I was a member of HNMCP’s project with the U.S. Office of Special Counsel (OSC). While the government shutdown made this project more challenging than anticipated, it was also far more rewarding than I could have appreciated when I registered for the clinic. Thanks to its success in protecting federal employees from prohibited personal practices (such as reprisals for whistleblowing), OSC was inundated with a mounting caseload, without an increase in resources. My teammates and I were tasked with analyzing OSC’s complaint processing structure—from intake to resolution—and making recommendations for possible improvements. Working on the project gave me a greater appreciation for the role of institutions like OSC in creating an environment where merit and equality of opportunity are paramount. Additionally, my final paper for the accompanying Dispute Systems Design class focused on South Africa’s Truth and Reconciliation Commission—specifically focusing on the perceptions and treatments of combatants from both sides, who would be potential spoilers for lasting peace.
After nearly three years at the law school, I’ve been privileged to hone numerous useful skills and learn many important lessons thanks to Harvard’s ADR program. In my experience, the most important of these was thinking about another party’s interests in a strategic manner. Whether they are your “opponent,” your client, or even your colleagues, my experiences with the ADR program have imprinted on me how critical it is to seek to understand others – find out what truly motivates them and you have probably identified the most pressing issues that need to be resolved in any “solution” you propose. After graduation I’ll be returning to Clifford Chance’s office in Washington, DC, where I spent my 2L summer (as well as three weeks in their office in Dusseldorf, Germany). What I found was that while matters I worked on were incredibly varied and challenging—the “solution” to each one invariably required asking myself “what do the parties really want here?” My hope is that no matter where my career takes me, this question will remain at the forefront.
Laurence Hull is a third-year J.D. student and a native of London, United Kingdom He will be joining the law firm of Clifford Chance LLP in Washington, DC, in the fall.
Erin Ryan ’01
When I came to Harvard Law School, I felt pretty clearly that I was not aiming for a career as a litigator, but rather as a problem-solver. But it wasn’t until I took the “Negotiation Workshop” that it suddenly all came together. This was why I had come to Harvard! More than any other law school course, the Workshop empowered me to build bridges where bridges were needed, craft solutions that maximized potential, and repair relationships to maximize future benefit.
Before law school, I was a U.S. Forest Service ranger on the Mono Lake district of the Inyo National Forest. Fans of environmental law will recognize Mono Lake as the home of one of the most important public trust doctrine cases of recent decades, National Audubon Society v. Superior Court, decided by the California Supreme Court in 1983 (invalidating long-standing licenses for Los Angeles to export Mono Basin water). After the court’s decision, the State Water Resources Control Board spent a decade working with all stakeholders to figure out how to allocate scarce water resources equitably and sustainably. I was at Mono Lake in the immediate aftermath of this period, when the original litigants had moved on from battle and were now joining forces to implement these legal decisions as cooperatively as possible. After years of arguing in court, now the same lawyers, scientists, policymakers, and engineers were working together. It was an inspiring experience, and it taught me a lot about the possibilities for collaborative solutions, even in the face of staunch differences and raw emotions.
Maybe this is why the “Negotiation Workshop” felt so essential to me. Negotiation training helped me understand that beyond the openly conflicting interests of the parties, there are subterranean currents of power dynamics, ethical challenges, emotional influences, communication problems, identity conflicts, and relationship issues. Difficult negotiations require the management of all these aspects simultaneously, and that’s hard to do. Internalizing the “Negotiation Workshop”’s framework—to the point that I now see it superimposed on nearly all human interaction when I look carefully—was a critical component of my training.
The “Negotiation Workshop” was a great foundation for me; from there I was able to take a multiparty negotiation course and, in my third year of law school, become a JD-level Hewlett Fellow with the Program on Negotiation. I wrote my Harvard Law Review note, “ADR, The Judiciary, and Justice: Coming to Terms with the Alternatives,” on developments in alternative dispute resolution at a time when court-connected ADR was still relatively novel.
Several key lessons from the “Negotiation Workshop” especially stood out for me. Learning about the Pareto frontier gave me a powerful model for crafting potential outcomes. The skilled use of norms and objective criteria to justify and critique proposals was also an important development for me. So was the use of patient, generous listening, acknowledgment without agreement, and the empathy loop in facilitating clear communication. Learning how to manage emotion during a negotiation—my own as well as others’— remains an important (and ongoing) process.
I find expression for these skills in almost all professional and personal contexts. I use negotiation skills with superiors in the school administration, students in the classroom, colleagues, friends, family members, doctors taking care of me as a patient, and strangers on the street. In addition, I have now been teaching this material for many years as a law professor.
As a negotiation teacher, I use the skills I teach to help students develop professionally. Even when I teach non-negotiation subjects, like Property or Natural Resources Law, my teaching is suffused with perspective on how cases might have been better managed through more proactive, problem-solving intervention. As a legal scholar, my research agenda focuses on intergovernmental bargaining within systems of constitutional federalism, and other forms of negotiated multijurisdictional governance. In “Negotiating Federalism” (52 B.C. L. Rev. 1, 2011), and my subsequent book, Federalism and the Tug of War Within (Oxford, 2012), my scholarship provides a thickly descriptive account of purposeful and inadvertent negotiation among institutional actors, constituting “an essential political sociology of institutional behavior” that contextualizes my normative proposals for multilevel governance theory more generally.
Sharing ideas about negotiation with new generations of students is one of the great pleasures of my career, and often feels like my most valuable professional contribution to the world. It is both humbling and inspiring to lead students along the same journey that Bob Mnookin, my first negotiation professor, and Bob Bordone, my working group leader, first led me through so many years ago. And based on what I hear from students, many have experiences of catharsis and continued growth similar to my own.
Erin Ryan, Professor of Law at Florida State University and Lewis & Clark Law School, teaches environmental and natural resources law, property and land use, water law, negotiation, and federalism. While at Harvard Law School, she was an editor of the Harvard Law Review and a Hewlett Fellow at the Harvard Negotiation Research Project. She clerked for Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit before practicing environmental, land use, and local government law in San Francisco. She began her academic career at the College of William & Mary in 2004 before joining the faculty at the Northwestern School of Law at Lewis & Clark College in 2011. She moved to the Florida State University College of Law in 2015. She spent a year as a Fulbright Scholar in China, where she taught law, studied Chinese governance, and lectured throughout Asia. She has advised National Sea Grant multilevel governance studies involving Chesapeake Bay and consulted with multiple institutions on developing sustainability programs. She has appeared in the Chicago Tribune, the London Financial Times, the PBS Newshour, and NPR. She is the author of many scholarly works, including Federalism and the Tug of War Within.
The National Committee on United States-China Relations has named the next slate of Fellows in its Public Intellectuals Program and the Harvard Negotiation & Mediation Clinical Program (HNMCP) is pleased to announce Lecturer on Law and Clinical Instructor Alonzo Emery is among them.
The Public Intellectuals Program (PIP), launched in 2005, is dedicated to nurturing the next generation of China specialists who have the interest and potential to venture outside of academia to engage in the public and policy community. Over the course of two years, the program will help twenty young scholars and specialists working in various disciplines to expand their knowledge of China beyond their own interests by introducing them to each other as well as specialists from outside their fields. By requiring each of them to organize a public outreach program, the PIP also encourages them to actively use their knowledge to inform policy and public opinion.
“As the United States and China become increasingly inter-connected, citizens from these nations will benefit from greater mutual understanding,” says Emery. “Having dedicated my career to initiatives linking China and the United States, the Public Intellectuals Program expands my capacity to nurture future stewards of the US-China relationship—a relationship I view as critical to the world’s future.”
Mr. Emery’s interest in and scholarship around China began in his earliest university career when he studied at Peking University, Tsinghua University, and Taiwan University (in addition to Yale University, where he earned his BA with distinction in Political Science and Architecture). During his time as a student at Harvard Law School, Emery participated in HNMCP, helping to manage two projects with Hewlett Packard focused on human rights at their source factories in Dongguan, China. After law school, Emery served as Assistant Professor of Comparative Jurisprudence at Renmin University School of Law in Beijing, teaching courses in alternative dispute resolution, international, and American law. He also ran the Renmin University Disability Law Clinic, China’s first law school clinic dedicated exclusively to providing legal services to persons with disabilities. During his time there he managed a third project with HNMCP, this time as the client, and upon joining HNMCP, he organized and managed a fourth project with the Disability Law Clinic, this time acting as Clinical Instructor.
“I am so thrilled that Alonzo has received this well-deserved honor,” enthused Prof. Robert C. Bordone, Director of the Harvard Negotiation & Mediation Clinical Program. “The selection committee clearly recognized the many outstanding qualities that make him a valued member of the HNMCP team. I know he will make an important contribution to the work of PIP.”
In 2014 HNMCP began a blog experiment on our regular website. With posts such as “A Prescription for Better Communication,” “Preparing Future Generations to Negotiate the US-China Relationship,” “Pope Francis: The Great Negotiator,” and “Giving Thanks for (Facilitation) Students,” we found ourselves really taking to this new-for-us outlet to reflect on all things dispute resolution related. As a result, we shifted our blog to an external site, hnmcpblog.wordpress.com.
In response to events in our country this fall, we recently launched a blog-within-our-blog, “Dialogue & Demonstration.” This series features students, faculty, and staff who work in negotiation, mediation, and dispute resolution spaces as they share reflections about the role of alternative dispute resolution during times of activism and social change. Many of these entries raise important questions both for the field and for the authors as they navigate questions of identity, purpose, and role.
Our initial series features Deanna Parrish ’16, Ariel Eckblad ’16, Lisa Dicker ’17, Caroline Sacerdote ’15 and Jennifer John ’15, as well as an introductory piece by HNMCP Director Bob Bordone. This series is meant to be a forum for engaging in robust, forward-looking conversations that are significant for the alternative dispute resolution field and for our country. We will continue to add posts and we welcome and invite comments and submissions.
By Daisy Wu ’16
On February 28, 2015, the Harvard Negotiation Law Review (HNLR) proudly presented its ninth annual symposium, “Restorative Justice: Theory Meets Application,” a full-day conference on how restorative justice principles may be applied to different areas of practice.
The symposium began with opening remarks by Rachel Viscomi, Assistant Director of the Harvard Negotiation & Mediation Clinical Program. Ms. Viscomi reflected on recent events in Ferguson, Missouri and the ways in which our current criminal justice system contributes to disconnection and disenfranchisement. In this way she framed the symposium as an examination on how restorative practices might assist in the reformation of the U.S. judicial system.
The first panel, “Bringing a Theory to Life: Origins, Expectations, and Realization,” focused on the evolution of the theory of restorative justice and its relationship to other theories of punishment. Moderated by Sonja Starr, three leading academics in the field—Annalise Acorn, Mark Umbreit, and Daniel Van Ness—engaged in passionate dialogue on the merits and failings of restorative justice as a system. The session also included conversation on the potential for restorative justice to address various social ills in society.
The second panel, “Victims in Restorative Justice,” discussed the victim-centered approach in restorative justice that contrasts with other theories of punishment. Moderated by Daniel Van Ness, the panel featured the Hon. John Cratsley (Ret.), the Hon. Janine Geske (Ret.), Pierre Berastain, and Karen Lischinsky. The panel focused on the meaning of a “victim-centered” approach, why that emphasis is important and whether it’s important to actual practice, and whether restorative justice is indeed, in actual practice, victim-centered. Also discussed was the importance of a community to the work. The panelists, all of whom are experienced practitioners, shared personal anecdotes of restorative justice from the field.
The third panel, “Empowering Youth Through Restorative Justice,” explored the potential of the work to make a positive impact on the lives the young people. The panel was moderated by Mark Umbreit and featured the Hon. Jay Blitzman, Erin Freeborn, Christine Agaiby, and Chandra Banks. The group discussed the positive impacts of restorative justice against the backdrop of more traditional disciplinary systems in schools, offering personal recollections of its great benefit. Of particular focus was an assessment of why youth respond more positively to a system that encourages them to take responsibility for their actions.
HLS Dean Martha Minow gave the afternoon address, in which she highlighted the importance of alternative forms of justice, especially in their application to international conflicts. She shared reflections on her own work examining truth and reconciliation systems in post-conflict societies and with former combatants, especially child soldiers. Following Dean Minow was the fourth and final panel of the day, “Restorative Principles in Transitional Justice.” The panel was moderated by Adriaan Lanni, and included Timothy Longman, Carl Stauffer, and Pushpi Weerakoon. They explored the intersection between restorative and transitional justice practices: the effectiveness of restorative justice during times of political transition; benchmarks of success in transitional justice; and unique challenges in applying restorative justice to this area. Examples emerged from the speakers’ personal experiences in myriad countries.
To close the symposium, Massachusetts state Senator James B. Eldridge delivered the keynote address speaking on the legislative challenges associated with trying to pass Bill S.52—an Act promoting restorative justice practices in the Commonwealth. Senator Eldridge spoke passionately about the need to reform the criminal justice system, and audience members engaged in a lively question-and-answer session about both the Act and about the political process in Massachusetts
HNLR is grateful for the support of the Harvard Negotiation and Mediation Clinical Program and other co-sponsors who made the Symposium possible: Milbank Tweed, the Program on Negotiation at Harvard Law School, and Triad Consulting Group. Free streaming videos of each panel are available at the symposium website.
Pennsylvania State University’s Sustainability Institute is seeking public comment on a report that proposes a new community and stakeholder engagement process for setting University-wide goals for sustainability, starting with energy.
During the past two years, Penn State’s administration has asked the University’s Sustainability Institute to convene community discussions about sustainability issues, including a forum on the concept of zero-carbon communities and an extensive assessment of key stakeholder views on the recent natural gas pipeline controversy. Along with partners at Harvard University, the Institute is now developing a new process for engaging the community and other stakeholders when the University is setting goals for sustainability. The first topic to be tackled using this inclusive process is likely to be the University’s energy goals.
A report on the proposed stakeholder engagement process has been publicly released, and the Sustainability Institute invites suggestions that will help them to modify and refine this process. Anyone may offer comments on the report until Feb. 18; details on where to find the report and how to submit comments can be found below.
Penn State’s Sustainability Institute was created to lead the University’s sustainability mission: a comprehensive integration of sustainability into the University’s research, teaching, outreach and operations that prepares students, faculty and staff to be sustainability leaders. Sustainability is broadly defined by Penn State as the simultaneous pursuit of human health and happiness, environmental quality, and economic well being for current and future generations.
In its inaugural two years, the Sustainability Institute, in response to the call for a new approach to decision making, explored models of stakeholder engagement that bring communities together to address the challenges of sustainability.
Last July, the Sustainability Institute began work with the Harvard Negotiation and Mediation Clinical Program (HNMCP), the nation’s first legal clinic focusing on conflict management and dispute systems design. HNMCP student teams, under the supervision of Harvard Law School clinical faculty, work on projects for clients in a number of fields and industries.
After consulting with key participants during the fall semester, HNMCP recommended a four-part stakeholder engagement process for setting an energy-related goal at Penn State. The process includes an initial public meeting, the convening of an Energy Task Force with diverse membership to coordinate and manage the process, a notice and comment period to address draft goals and principles for going forward, and a period of reflection and feedback. The report “A Blueprint for Engaging Stakeholders in Setting Energy-Related Goals at Pennsylvania State University: Report and Recommendation” is available for download.
“Emphasizing transparency and open dialogue, the process was designed to yield an actionable blueprint for engagement and consensus building for important institution-wide issues such as energy planning,” said Denice Wardrop, director of the Sustainability Institute. “It will take all hands on deck.”
Two Harvard Law students, Joshua Fogarty and Tara Norris, conducted three focus groups and 30 private interviews with individuals from a wide variety of stakeholder groups, including Penn State faculty, students, administrators, and staff, and residents living near the University Park campus.
“This process provided a rich and diverse foundation for the identification of broad trends in stakeholders’ interests and opinions, and the resulting information grounded their proposed processes in Penn State’s unique resources and challenges,” said Wardrop.
The result: a framework for a community and stakeholder engagement process that involves both the University and its regional community and that may be used to address to a number of high-level resource challenges facing the University, including energy planning, climate action planning and water management.
Reflecting on the project, Norris summed up her views on stakeholder participation, “I believe that every community, including Penn State, is made stronger when the people involved feel like they can help shape the decisions that affect them, and I hope that our plan helps encourage that feeling.”
“Penn State is brimming with folks who have the knowledge and interest necessary to improve their community,” added Fogarty.
HNMCP Director Robert Bordone highlighted the importance of process design: “Consensus based processes such as these are the surest ways to educate a community and ensure that all its members feel good about decisions going forward.”
The report includes concrete phases and timelines, and was originally designed as a six-month process to enable completion by July. The Sustainability Institute is working with the University administration to determine the best way to adapt the recommendations to meet Penn State’s needs. Because adequate participation and consideration of the public comments on the report are a critical part of the engagement process, they may require a longer timeline. The report is available for download and open for public comment until Feb. 18.
A plan is in place to pilot the engagement process this spring and summer, with the goal of developing the University’s first institution-wide energy-related goal.
“We were delighted when we were selected to be a part of this unique program,” said Wardrop of the experience with HNMCP, “and look forward to the opportunity to experiment with a thoughtful and thought-provoking process that will allow us to envision our collective future and chart a path towards it, one that requires all of our education, research, outreach and operations functions to meet.”
An open comment period will accompany the process throughout the spring and summer.
“I encourage members of our community to grab a cup of coffee, find a comfortable seat and enjoy reading the report and consider how we might tackle some of our biggest immediate challenges utilizing an inclusive process that is designed to use new ways of thinking and acting,” said Wardrop. “The process is designed to be exciting, interesting, bold and reflective of the commitment, contribution and thoughtfulness of its participants. And for this participation all contributors will have the profound gratitude of Penn State’s Sustainability Institute.”
Comments on the report should be directed to Denice Wardrop via email at dhw110-at-psu-dot-edu or via phone at 814-865-4415.
For more information about sustainability efforts at Penn State, visit sustainability.psu.edu.
By Elizabeth Moroney, courtesy of the HLS Case Studies blog
Hesperia Seed Initiative, our latest simulation, has been years in the making, undergoing many classroom tests and iterations before publication. In an earlier blog we introduced you to the multiparty role play, in which stakeholders negotiate the terms of an agricultural initiative regarding genetically modified seeds. Faculty author Professor Robert Bordone sat down to talk with us about the process and the possibilities of writing a simulation.
EM: What inspired the simulation?
RB: We teach a unit on multiparty negotiation for our spring negotiation workshop, and for many years we used a case called Harborco. Many people have done it already, and we wanted to replace it in our curriculum with a new case that was hot right now. Hesperia bridges many of the worlds that our students go on to work in: it has NGOs, big multinational companies, government officials, university interests, public health issues, and food. All of our students have an interest in negotiation, but the context really varies: they go on to do government work, international work, domestic work. What’s neat about this case is that it’s all in there.
Plus, the topic of genetically modified seeds is a growing, live, important issue: there are issues of justice and issues of science. There’s a great New Yorker article from August called Seeds of Doubt, which talks about GMOs. We were often tracking some real-life entities in our minds as we built out different roles for the simulation.
But we didn’t start with the issue of GMOs. When we create a simulation, we first think about our learning points. Then we look for a vehicle or a story for those learning points: we have a brainstorming session, look at the newspaper, and see what’s interesting to the group. For Hesperia, we had a two-hour session. We asked ourselves: what are our interests with respect to these possible topics? We also wanted staying power. A case study might favor current events, but if you’re developing a simulation for years, you want it to last.
EM: What challenges and opportunities did the writing process present?
RB: Primarily, we needed to be able to educate our students about biotechnology. I’m not a food policy or science expert, nor was our target audience. We needed to write a case short enough to use in a basic negotiation class, but we needed to educate students enough to be versed for the negotiation.
Another challenge – which made the case unique – was the balance between scorable and nonscorable components. You have to test it a lot, because within the scorable parts, you want people to pay attention to the points. When you include nonscorable elements, it’s like an exhaust pipe, a release from the pressure of negotiating for points-based agreements. We needed to stress that the points still mattered.
In the early iterations, it was too easy to create value and make concessions outside of the point structure. It made the negotiation too easy. In real life, when you’re negotiating salary, perks matter, but the money is always important. In a simulation, it’s easier to disregard the money and accept the corner office instead.
But when we went the other direction and focused on the scorable components, no one talked about value-creating opportunities. A lot of the scorable games do not have interests embedded in them, only bottom lines. Those games might be fun, but there are fewer learning opportunities.
It was a challenge to create a point structure with the right ZOPA (zone of possible agreement), one with just the right number of possible agreements. With each change to the scoring grid, we had to track the whole storyboard: six parties and five issues.
Simulations are great opportunities to implement my teaching model: tell, show, do, review. I can choose the learning goals and then put the storyboard around it. I find a story and characters, and make sure our students get excited about it. Food law is growing in popularity, and GMOs are among the most important security issues in the world, given climate change and a growing population. This case also discusses the distributional justice around food scarcity, and acknowledges the importance of business models in sustaining food security initiatives.
EM: What advice do you have for case writers and teachers in the legal classroom?
RB: Simulation writers (and case writers) should always start with a pedagogical reason for developing a case. It doesn’t work to start with a context. They need to think about the end of the case: what will the teaching points be? Then, they build a case around that. No matter how clear you think a case study or simulation is, you need to test it in the classroom, because people will read it differently.
I want teachers to know that this simulation can be used for many different pedagogical purposes. My advice is to know why you’re using it. It can be used to teach process, emotions, coalition formation, and more; the teaching note goes into some of these different approaches.
EM: How did the students react to the simulation?
RB: They loved it. It was one of those classes where class was over and they were hanging around, continuing to talk about it. It had the amount of resonance I see from my most successful simulations and cases.
Instructors should be aware that students really get into the simulation. There can be a fair amount of emotion when they’re so embroiled in the issues.
EM: What else should we know about Hesperia?
RB: It’s not just for law school. I could envision it being used in public policy school, business school, the school of public health. And if people find innovative ways of teaching it, I want to hear their feedback!
HNMCP Clinical Instructor Heather Scheiwe Kulp has been published in the most recent issue of the Pepperdine Dispute Resolution Law Journal with her cleverly titled article, “A Tightrope Over Both Your Houses: Ensuring Party Participation and Preserving Mediation’s Core Values in Foreclosure Mediation.”
Kulp outlines why mediation is an attractive and powerful option for large scale crises, such as the foreclosure crisis that has gripped the U.S. since 2007. Mediation supports resolving disputes in mutually satisfactory ways, helps to balance power dynamics, allows for emotions to be addressed, and promotes equitable, open, and direct communication. In addition, mediation encourages parties to make their own agreements rather than accept the outcome (foreclosure) should no alternative agreement be made. Self-determination ensures greater compliance and satisfaction with the dispute resolution process, even if the outcome is foreclosure.
“Trust, clear communication, and the ability to brainstorm many options are at the heart of a dispute resolution process,” explains Kulp. However, for all the strengths of mediation, a strong and well-designed system is necessary to balance competing goals. “In this article, I wanted to explore some of the tensions among the goals of foreclosure mediation programs, primarily the tension between holding parties accountable for unhelpful behavior and promoting creative option generation through a confidential process. Importantly, I wanted to offer some dispute systems design suggestions for how entities starting foreclosure mediation programs might build program components that balance these tensions.”
In her research of over twenty-five states, counties, or municipalities that have adopted a form of foreclosure mediation, Kulp found tensions between program goals and traditional mediation values and sometimes, even, mediation laws. Examples include programs citing explicit goals that reflect a non-neutral stance, such as keeping borrowers in their homes or holding servicers (rather than all parties) accountable for bad practices. The focus of holding parties accountable for undesirable behavior can be in direct tension with mediation’s core values of confidentiality and self-determination. In addition, several levels of accountability (attendance, exchange of documentation, and participation in good faith) can be in contrast with priorities and rules under which court-connected mediation has historically operated. Kulp stresses that it is vital for mediation to remain a neutral process, while balancing the need for protective measures to keep sophisticated servicers from using this process to further confuse pro se litigants and to keep borrowers from using mediation to draw out the foreclosure process.
Kulp proposes ways to use the aforementioned accountability elements to construct a fair and self-determined process that does not negatively alter the role of the mediator. She elaborates with specific and thorough recommendations for program design. She writes, “Mediation program developers perform a balancing act. They must determine the goals of the program and the public policies governing it, weigh the interests of its stakeholders, and comply with various statutory, administrative, and professional standards. . . . Once begun, programs must also subject themselves to rigorous evaluation. Only by involving interested parties at all stages of program development will foreclosure mediation programs ensure the core values of the mediation process serve to relieve the foreclosure crisis.”1
1Heather Scheiwe Kulp, A Tightrope Over Both Your Houses: Ensuring Party Participation and Preserving Mediation’s Core Values in Foreclosure Mediation, 14 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 2, 243–44 (2014).
HNMCP Director Bob Bordone and Assistant Director Rachel Viscomi have written two book reviews of interest to those in the world of alternative dispute resolution:
HNMCP Director Bob Bordone has been engaging in lots of extra-curricular ADR work over the past several months. In August, he and HLS “Negotiation Workshop” Lecturer on Law, Florrie Darwin ’84, visited Seeds of Peace International Camp in Otisfield, Maine to deliver a program to Peer Support Leaders. Former HNMCP Associate Toby Berkman ’10 joined Bob and Florrie to bring this negotiation and conflict resolution training to the Seeds for Peace program in Tel Aviv, Israel in January. Also in August, Bob worked with Harvard Law School colleagues in the Program on Negotiation and the Partnership for a Secure America in Washington, D.C. to design and deliver a negotiation training program for senior Democratic and Republican staffers on Capitol Hill. The goal was to provide them with skills to help break the gridlock in congressional negotiations. In January, Bob returned D.C. with HNMCP student and teaching assistant Sam Straus ’15 to train the staff of California Congresswoman Grace Napolitano. Bob and Sam were impressed by the earnestness and skill of the congresswoman’s extraordinarily talented and devoted team. In March, Bob and Sam will also deliver a one-day program to senior managers at Harvard University through its Center for Workplace Development.
Clinical Instructor Heather Kulp presented at the “New Directions in Negotiation & Dispute Resolution Scholarship Roundtable” at Washington University Law School in the Fall of 2014. Heather presented on an upcoming paper she is co-authoring with Amanda Kool, a Clinical Instructor in the HLS Transactional Law Clinics, in the Washington University Journal of Law and Policy, “The Role of Lawyers and Dispute Resolution in the Sharing Economy.”
On August 14th, HNMCP Assistant Director Rachel Viscomi co-delivered a mediation session with Judge Elizabeth Perris for the Federal Judicial Center’s National Workshop for Bankruptcy Judges in Boston. In October, Rachel spoke on campus at a student-organized evening of dialogue called “Conversations on Race,” designed to invite students to engage in challenging and important conversations about how we understand and experience racial differences in the United States.
Toby Berkman ’10 joined the staff of the Consensus Building Institute in August as an Associate. Welcome back to Boston, Toby!
Former Clinical Instructor Chad Carr ’06 joined forces with alumni Mark Holloway ’07, Leah Kang ’12, and Ryan Taylor ’07 to co-teach the “Negotiation Seminar” at Georgetown Law Center this past fall semester.
Rachel Krol ’12 will be teaching “Negotiation and Conflict Resolution” this spring in the undergraduate program at the Wharton School at UPenn
Former HNMCP Clinical Instructor Matt Chen-Smith ’05 and his wife Cindy welcomed their first son Asher Adam into the world on October 22, 2014. Congrats Matt!
Jake Erhard ’01 welcomed his second child, Carleigh Roberta Erhard, on March 4, 2015.
Tristan Jones HKS ’03 welcome his second child, and little Jake claimed his sister Clara right away. Congrats Tristan!
Former Clinical Instructor Jeremy McLane ’02, now faculty at the University of Connecticut School of Law, won Honorable Mention in the 2015 AAALS Scholarly Papers Competition for his paper, “Agency and Teamwork: Measuring Benefits and Unintended Consequences in Securities Transactions.”
Hema Patel ’13 joined The Mediation Group in Brookline, MA as their first Fellow. We’re excited to have Hema back in Bean Town!