Faculty of Education
Graduate Studies & Field Research
07.798 (A00) Negotiations and Alternative Dispute
Resolution: Theory and Practice
Summer / 2011 / Term B
Dates: July 4 - 8, 2011 (on-campus)
Time: 9:00 am to 5:00 pm
Location: Education Building, room #203
Instructor Name: Professor Alan Levy
Office #: Clark Hall, room #404
Telephone: (204) 727-9708
Email: levya@brandonu.ca
Course Description:
This course addresses Negotiations & Alternative Dispute Resolution (ADR) in the
workplace, including theoretical models and applications relevant to managing conflict in
employment settings. As well this course is designed to provide theoretical knowledge
and practical skills essential to being effective negotiators in an educational workplace
framework. Education theory and models will be closely examined concerning conflict
resolution. Participants will learn successful strategies for negotiation, as well as have
ample opportunity to practice their skills in simulation exercises. The program offers a
systematic approach to mastering the fundamentals of making favorable agreements
that minimize conflict and maximize results. Some specific benefits include: (1) learning
how to maximize the potential of making an agreement on your terms; (2) learning how
to avoid making an unfavorable agreement; (3) identifying strengths and weaknesses in
personal negotiating style; (4) improving your ability to make good choices in
negotiation strategy; and (5) understanding the role of relationships in making good
agreements.
Instructor presentations, readings, simulations, case studies and research projects will
acquaint students with the advantages and disadvantages of ADR. Students will gain a
firm understanding of how to resolve workplace conflict in both unionized and nonunionized environments. Negotiation is the science of securing agreements between
two or more interdependent parties.
The central issues of this course deal with understanding the behaviour of individuals,
groups, and organizations in the context of competitive situations. The course is
intended to help you:
• To understand and think about the nature of negotiation and work-place conflict. This
objective is paramount because many of the important phenomena in negotiation (such
as interests, goals, and cooperation) are ambiguous and often do not have "right"
answers - we cannot teach a set of formulae that will always maximize your profit
(although they might help).
• To gain a broad, intellectual understanding of the central concepts in negotiation and
conflict resolution. These concepts will be the building blocks from which we can
systematically understand and evaluate a negotiation and conflict resolution process.
• To develop confidence in the dispute resolution process as an effective means for
resolving conflict in organizations.
• To improve analytical abilities in understanding the behaviour of individuals, groups,
and organizations in competitive situations.
• To provide experience in the dispute resolution process, including learning to evaluate
the costs and benefits of alternative actions and how to manage the negotiating process
in an educational setting.
Course Format
Most class meetings will be organized in a seminar style, to facilitate critical analysis of
topics considered. Active discussion is encouraged at all times during the course.
Therefore, it is the instructor’s responsibility to create an atmosphere that facilitates
student participation in the learning experience. It is the student’s responsibility to take
advantage of this opportunity to learn, by ensuring that all assigned readings are done.
This course is taught in a case study approach, using the pedagogy of action learning
thus the course requires self directed learning. In other words, students must manage
their own learning development to obtain the highest level of learning satisfaction. There
is a high degree of creative learning during the scheduled classes, through initiative
methods of teaching.
Learning Objectives
This course is designed to launch you on a career-long path of critical thinking and
reflection as a conflict intervener and practitioner. A list of life-long learning objectives in
peace and conflict includes:
• Articulating and questioning how your view of reality, human nature, the meaning of
life, conflict, change, and human relationships guide and shape conflict behaviour and
work;
• Understanding how and why conflict occurs in education settings and through
communication for ourselves and those with whom we engage;
• Developing a critical understanding of major assumptions and premises of conflict
models and theories;
• Applying theoretical tools to specific conflict situations to reveal assumptions and
beliefs about current intervention strategies of conflict;
• Recognizing the external forces (e.g. ideological, institutional, structural, economic,
and interpersonal) that shape our way of “doing” and “being” in conflict; and
• Understanding the constructed and cultural meanings, the historical significance,
rhetorical purposes, and systemic tensions expressed by conflict activities.
Specific learning objectives for this course are to develop an ability to:
1) Articulate your own implicit theoretical positioning toward conflict;
2) Name and describe a number of dominant theorists and theories of conflict;
3) Demonstrate how theory is related to fact-finding, conflict analysis, and intervention
strategies.
CLASS SCHEDULE/READING DATE
I would advise that all readings be done before the start of the course. Failure to do so
will put you in a deleterious position in understanding the class course material.
Required Texts & References:
a) Laurie S. Coltri Alternative Dispute Resolution: A Conflict Diagnosis Approach
(2nd Edition) [Paperback]
b) Roger Fisher and William Ury, Getting to Yes, Penguin, 1991.
c) John Dewey, Democracy and Education, The Free Press 1944
d) Journal articles to be placed on Moodle
Course Assignments (APA version 6.0 required).
Evaluation:
a) In-class participation, including in-class simulations: 10%
b) Research Proposal: 30%, First Day of Class: Details of assignment to be sent
out 30days before the class starts.
c) Oral presentation on research paper: 20%
d) *Research paper: 40%, Two weeks from the last day of class
TOTAL: 100%
Presentations are on the last day of class. Please be prepared.
*The research paper is expected to be 20-25 typed, double-spaced pages in length,
and will be based on student research about ADR in the workplace.
IMPORTANT: For any extensions to be approved, a medical note is required.
Three (3) points a day (including weekends), shall be deducted for all unapproved
extensions.
Course Grade Evaluation:
-Minimum grade requirement for graduate program: B
-Grade Equivalencies:
A+ 96-100
A
90-95
A85-89
B+ 80-84
B
75-79
BC+
C
D
F
70-74
65-69
60-64
50-59
Under 50%
Academic dishonesty will cancel out all the calculations above and result in a
final grade of F-AD (Fail-Academic Dishonesty)
(refer to the Graduate Calendar, section 5.3.2)
Instructor / Course Evaluation:
The anonymous course evaluations will be completed online. All students are expected
to complete the evaluation. Dates of the evaluation will be communicated by the
instructor through the Graduate Studies Office.
Proposed Class Schedule:
Day 1
Read entire book Getting to Yes
Laurie S. Coltri Alternative Dispute Resolution: A Conflict Diagnosis Approach
(2nd Edition) [Paperback]
Chapter 1. Defining Terms, 1
Definitions, 2
What Is Interpersonal Conflict?, 2
Participants in Conflicts, 5
A Typology of Dispute Resolution, 7
Exercises, Projects, and “Thought Experiments”, 11
Chapter 2. Understanding the Foundations of ADR, 12
Minimizing Perceptual Error and Judgmental Bias, 16
Individual Sources of Perceptual Distortion, 16
Distorted Perception Arising from Escalated Conflict, 19
How Conflict Escalation Leads to Perceptual Error, 20
Cultural Sources of Distorted Perception: The “Invisible Veil”, 23
Perceptual Distortion and Conflict Resolution: Conclusion, 25
Focusing on Interests, Rather Than on Positions, 26
Interests, Values, and Needs, 28
Interests, Values, and Needs of Constituents, Agents, Advocates, and Others, 32
Generalizing the Significance of Interests, Values, and Needs, 32
Tailoring the Process to the Conflict’s Causes, 33
Sources of Conflict, 33
Impediments to Constructive Resolution, 38
Promoting Psychological Ownership, 41
The Benefits of Promoting Cooperation, 43
Efficiency, 44
Resource Optimization, 44
Conflict Containment, 45
Relationship Preservation, 45
Cooperation and ADR, 46
Competition’s Role, 47
Using Power Effectively, 47
BATNA and WATNA as Elements of Expert Power, 50
Understanding the Foundations of ADR: Putting It Together, 51
Exercises, Projects, and “Thought Experiments”, 51
Recommended Readings, 54
Day 2
Chapter 3. Mediation: An Introduction, 57
Basic Definitions, 58
Mediation, 58
The Facilitative-Evaluative Distinction, 59
Facilitative Mediation, 60
Evaluative Mediation, 60
Processes Related to Mediation, 61
Settlement Conference, 62
Facilitation, 63
Conciliation, 63
Collaborative Law, 63
Uses of Mediation Today, 64
Approaches to Mediation, 67
Triage Mediation, 68
Bargaining-Based Mediation, 69
Pure Facilitative Mediation, 72
Transformative Mediation, 74
Narrative Mediation, 76
Participant Roles in Mediation, 77
Mediator(s), 77
Disputants and Their Lawyers, 78
Paralegals (Legal Assistants), 81
Constituents and Dependents, 82
Consultants and Experts, 83
Stages of Mediation, 83
Initial Client Contact, 84
Introductory Stage, 85
Issues Clarification and Communication, 86
Productive Stage, 88
Agreement Consummation, 90
Debriefing and Referral, 90
What Do Mediators Do?, 90
Facilitative Tactics in Mediation, 90
Educating, 91
Structuring the Negotiation, 92
Improving Communication, 92
Handling Emotions, 92
Maintaining Disputant Motivation, 96
Evaluative Tactics in Mediation, 96
Instilling Doubt, 96
Offering Opinions About the Case (Case Evaluation), 98
Caucusing, 99
Exercises, Projects, and “Thought Experiments”, 101
Recommended Readings, 103
Chapter 4. The Law and Ethics of Mediation, 106
Introduction: Why Regulate Mediation?, 107
Preserving the Essence of Mediation, 108
Ensuring the Effectiveness of Mediation, 112
Protecting Other Rights, 113
Legal Issues in Mediation, 114
Confidentiality, 114
Waiver of Confidentiality, 117
Consent of the Participants, 117
Mediator Malpractice or Malfeasance Claim or Defence, 118
Protection of the Mediation Process, 118
Matter to Be Revealed Not Confidential to Begin With, 119
Evidence of a Crime or Child Abuse/Neglect, 120
To Uphold the Administration of Justice, 120
Conflict with Another Explicit Law, 123
Implications of Regulation of Mediator Confidentiality, 123
Mandating Mediation, 125
Coercion in Private Mediation, 127
Coercion in Court-Connected Mediation, 129
Implications of Coercive Elements in Mediation Programs, 135
Provision of Legal Services by Mediators, 135
Behavior of Legal Advocates During Mediation, 136
The Duty to Advise Clients About Mediation and Other ADR Processes, 137
Mediation and the Duty of Vigorous Advocacy, 139
Mediator Behavior, 140
Impartiality and Neutrality of Mediators, 140
Regulation of Mediator Competency, 145
Regulation of Mediator Qualifications, 146
Marketability, 147
Enforceability of Mediated Agreements, 148
Exercises, Projects, and “Thought Experiments”, 150
Recommended Readings, 152
Day 3
Chapter 5. Arbitration, 154
From “People’s Court” to “Creeping Legalism”: The Dilemma of Modern Arbitration,
155
A Brief History of Arbitration in the United States, 156
Arbitration Between a Rock and a Hard Place, 159
Varieties of Arbitration, 159
Executory and Ad-Hoc Arbitration, 160
Administered and Nonadministered Arbitration, 160
Interest and Rights Arbitration, 161
Other Arbitration Varieties, 161
Arbitration’s Place in Fostering “Good Conflict Management”, 162
Process of Arbitration, 164
Creating the Arbitration Contract, 164
Demanding, Choosing, or Opting for Arbitration, 166
Selecting the Arbitrator or Arbitration Panel, 166
Selecting the Procedural Rules, 166
Preparing for Arbitration, 168
Participating in the Arbitration Hearing, 169
Issuing the Arbitration Award, 170
Enforcing the Award, 170
Law of Arbitration, 171
Before Arbitration, 172
When Should a Dispute Be Arbitrated? Enforceability and Arbitrability, 172
Enforceability, 172
Arbitrability, 174
Suspending Court Proceedings and Compelling Arbitration, 177
Special Problems in EEOC Cases, 178
During Arbitration, 179
Arbitrator Misconduct, 179
Privacy and Confidentiality, 179
After Arbitration, 181
Enforcement of Arbitration Awards, 181
Review of Arbitration Awards, 181
Vacatur, 182
Arbitration Agreements That Specify Reviewability, 186
Choice of Law, 186
Choice of Law During Arbitration, 187
Choice of Law in Matters of Enforceability, Arbitrability, and Reviewability, 187
Exercises, Projects, and “Thought Experiments”, 189
Recommended Readings, 192
Chapter 6. Nonbinding Evaluation, Mixed (Hybrid), and Multimodal Dispute Resolution
Processes, 193
Nonbinding Evaluation, 194
Nonbinding Arbitration, 196
Minitrial, 196
Summary Jury Trial, 197
Neutral Evaluation, 198
Dispute Review Boards, 199
Day 4
Legal Issues in Nonbinding Evaluation, 200
Mixed and Hybrid ADR, 200
Varieties of Mixed, or Hybrid, Processes, 201
Med-Arb, 201
Arb-Med, 202
Mediation Windowing, 202
Incentive Arbitration, 202
Minitrial, 203
Multimodal ADR Programs and Processes, 203
Ombuds, 203
What Is an Ombuds?, 204
Basic Features of Ombuds: Neutrality and Confidentiality, 205
Critical Features of Competent Ombuds, 206
Dispute Resolution Systems, 208
Court-Connected ADR, 212
History of Court-Connected ADR, 212
Typical Features of Court-Connected ADR, 215
Issues in Court-Connected ADR, 217
Online ADR, 217
Varieties of ODR, 219
Special Considerations in ODR, 222
Advantages and Disadvantages of ODR, 222
Legal Issues in ODR, 227
Chapter 7. Putting It All Together: Selecting Optimal ADR Processes for Clients and
Disputes, 233
Advantages and Disadvantages of ADR Processes, 234
Mediation, 234
Advantages of Mediation, 235
Efficiency Considerations, 235
Conflict Management and Prevention, 237
Relationship Preservation, 240
Comprehensiveness, 240
Dealing Effectively with Meta-Disputes, 243
Disputant Quality of Consent, 244
Settlement Durability, 245
Individual Transformation, 247
Minimization of Conflicts of Interest with Legal Counsel, 248
Advantages of Litigation Over Mediation, 249
Guaranteed Outcome, 249
Nature of Enforceability, 249
Legal Precedent, 250
Privacy Issues, 251
Mediation and Low-Power Disputants, 252
Mediation Isn’t the Option of Last Resort, 256
Advantages of Negotiation Over Mediation, 256
Summary: Advantages and Disadvantages of Mediation, 256
Arbitration, 256
Compared with Litigation, 258
Compared with Negotiation, 260
Compared with Mediation, 261
Nonbinding Evaluation, 262
Compared with Litigation, 262
Compared with Arbitration, 265
Compared with Mediation, 266
Summary: Advantages and Disadvantages of Nonbinding Evaluation, 267
Mixed and Hybrid ADR Processes, 268
Med-Arb, 268
Arb-Med, 270
Mediation Windowing, 271
Incentive Arbitration, 271
Minitrial, 272
Ombuds, 272
Dispute Resolution Systems, 273
Online Dispute Resolution, 273
Summary: Advantages and Disadvantages of ADR Processes, 273
Dispute Resolution Process Selection Methods, 273
Day 5
Presentations
Instructor suggestions for getting the most out of the course:
All readings must be done before the week of classes. This course is taught in an
unstructured fashion it requires lots of independent learning.
Attendance at Lectures and Practical Work:
(refer to the Graduate Calendar, section 5.3.1)
1. All students are expected to be regular in their attendance at lectures and labs.
While attendance per se will not be considered in assessing the final grade, it
should be noted that in some courses participation in class activities may be
required.
2. For limited enrolment courses, students who are registered but do not attend the
first three classes or notify the instructor that they intend to attend, may have
their registration cancelled in favour of someone else wishing to register for the
course.
3. Students who are unable to attend a scheduled instruction period because of
illness, disability, or domestic affliction should inform the instructor concerned as
soon as possible.
4. Instructors may excuse absences for good and sufficient reasons.