Alternative Dispute Resolution George Mason University School of Law Fall 2013 Instructor: Telephone: Email: Class: CRN 80931 Office Hours Cindy Mazur 202.646.4094 cmazur1@gmu.edu Monday Night 6:00-8:40 pm--Hazel Hall 121 CRSE # 348 SEC 2 Credits 3 By Appointment Required Text: Jay Folberg, Dwight Golann, et al., Resolving Disputes: Theory, Practice & Law (2nd ed. 2010). Course objectives: This course examines the various alternatives to adjudication that lawyers use to help clients resolve civil disputes, including negotiation, mediation, collaborative practice, arbitration, private and public hybrids, and other innovative processes. Students will learn about the theoretical basis, legal framework, and practical operation of each process. The course will also address process design, effective advocacy in ADR settings, ethical and policy issues relevant to each process, and the relationship of ADR processes to the court system. Course policies: We will spend a significant part of each class engaged in role play simulations and other activities. Class attendance, therefore, is required. Absence or lateness will have a significant negative effect on your grade (excused absences are limited to religious observances, or medical or family emergencies). If you expect to miss a class, you must notify me prior to the class you will miss. Students are expected to do the readings assigned for each class. Before each role play, you may receive “confidential information.” Please do not discuss the “confidential information” with your classmates, except during the simulation with your assigned counterpart(s). Papers: Written submissions should be typed, double-spaced, with one inch margins. Each paper must be your own independent work. If you turn your assignment in late, there will be a significant negative effect on your grade. I prefer that you submit the paper to the course’s TWEN site in the appropriate drop box or email it to me directly. I prefer that the electronic document be sent in either pdf or Word. Grades: Grades will be based on (1) class preparation and participation (20% of grade); (2) a short annotated dispute resolution provision that addresses a specific circumstance, due November 18 by 5:00 pm (20% of grade); (3) a paper 10-12 pages, developing what we have discussed in class and applying legal theory and case law to an ADR topic of your choice, creating a new use or context for ADR, or inventing a new tool that would be used in lieu of litigation, due on December 9 by 5:00 pm, please discuss your paper thesis with me by October 28 (30% of grade); and (4) three class simulations that demonstrate your knowledge of the practical application of ADR skills (30%). Fall 2013 Schedule Class Topics & readings in Resolving Disputes (2nd ed. 2010). 8/19 Processes of dispute resolution (All readings are from Resolving Disputes unless otherwise indicated.) BEFORE CLASS 1-16 (esp. 5-16), 26-33, 95-97. Please view the film “A Separation” before the first class, on reserve at the library or available commercially. 8/26 Approaches to negotiation; information exchange; ethics 59-73, 77-80, 95-97, 108-117, 195-200; Model Rule of Professional Conduct (MRPC) 4.1 (TWEN); Please view film “Qui Ju” available on reserve or commercially. 9/2 Holiday; No class. Please view the DVD “Sluggers Come Home” on reserve at the library. 9/9 Case value; distributive bargaining 97-104, 121-30, 146-55, 158-61. 9/16 Integrative bargaining; client counseling 18-21, 81-82, 131-33, 161-66; Donald G. Gifford, “The Synthesis of Legal Counseling and Negotiation Models,” 34 UCLA L. Rev. 811, 844-850 (1987). 9/23 Approaches to mediation 249-52, 256-59, 267-78, 331-40; Virginia Rule of Professional Conduct 2.11 (TWEN). 9/30 Mediation process; confidentiality; ethics 299-331, 475-85, 498-502, 519-30. Read one of the three social media books on reserve at the library, “Blogging in one Hour for Lawyers,” (Kennedy), “Facebook in One Home to class with a carefully thought out suggestion for how ADR can be used in or impacted by social media. 10/7 Mediation advocacy 346-52, 359-61, 369-74, 379-84, 386-98. 10/14 Fall Recess-No class. 10/15 Court-connected mediation (Observe Monday Schedule) 407-52, 459-72, 503-509. 10/21 Collaborative practice; dispute resolution design; private judging 216-22, 745-54, 766-68; MRPC1.0 (e) & 1.2 (c); Robert W. Wooldridge, Jr., “The New Use of an Old Tool: the Judge Pro Tem Statute,” Virginia ADR, Fall 2010 at 1 (TWEN). 10/28 Arbitration process. Please discuss your thesis idea with me by this date. 538-47, 561-601. 11/4 Legal framework for arbitration. 611-18, 620-23, 627-29, 636-41, 659-64, 676-90; AT&T Mobility v. Concepcion (TWEN). 11/11 Fairness and integrity of the arbitration process 695-708, 717-31; Peter B. Rutledge, “The Case Against the Arbitration Fairness Act,” & Jean R. Sternlight, “Fixing the Mandatory Arbitration Problem: We Need the Arbitration Fairness Act,” from the ABA Dispute Resolution Magazine, Fall 2009 (TWEN). 11/18 Mixed processes. ADR provision due by 5:00 pm 603-09, 736-43; Daniel Winslow, “Litigation Prenups,” Fed. Lawyer, October 2010 at 4 (TWEN). 11/21 Thinking critically about dispute resolution 453-57; Phillip M. Armstrong, “Why We Still Litigate,” 8 Pepp. Disp. Resol. L. J. 379-84 (2008) (TWEN). Final assignment due: December 9 @ 5 pm