Shestowsky’s Study Supports Value of Lawyers’ Early Education of Clients About Their Procedural Options

This post summarizes parts of Donna Shestowsky’s study on parties’ expectations about the process used to resolve their cases. She writes, “Our findings suggest the value of educating litigants about legal procedures, helping them develop realistic expectations for what each procedure can entail for their situation, and helping them make informed decisions about whether to attend their procedures. . . . Our results suggest how important it is for lawyers to educate their clients about each of their procedural options. Effective education and managing client expectations might lead to the formation of attitudes that reflect realistic expectations, and, in turn, lead to post-resolution assessments that reflect early impressions.

BATNAs and the Emotional Pains from “Positional Negotiation

This post describes the role of BATNAs in the “positional negotiation” game, pains that it causes people in many roles, and some remedies to avoid and reduce these pains. In this “game,” each side seeks to maximize its outcome by starting with extreme positions and then making a series of counteroffers. Each side concocts stories justifying their positions but everyone knows that these stories are exaggerations at best and fibs at worst. If you gave truth serum to the lawyers, they would admit that they don’t really believe their own arguments. But they do it because “everybody does it.” It’s expected. It’s just “puffing.” They would feel like suckers if they didn’t do it. They would see themselves as bad lawyers, failing to protect their clients. They fear losing financial rewards and professional opportunities if they don’t get good results for clients. But many don’t feel good about it. The process wears on some mediators who stage manage these dramas. Parties suffer the worst. Even when lawyers explain the game, clients often anchor their expectations on the negotiation positions. With each new concession, they feel a new loss – an unprincipled loss for no good reason. In the end, they swallow a bitter pill when they settle for a much worse outcome than they expected. People can reduce or avoid pains of positional bargaining by using what I called “ordinary legal negotiation,” negotiating to change the game, and using wise assessment and communication techniques

UNDERSTANDING ACTUAL DR PRACTICE AND COMMUNICATING CLEARLY ABOUT IT

This post recommends we develop a common language of dispute resolution and increasingly use qualitative research methods

Practical Insights From an Empirical Study of Cooperative Lawyers in Wisconsin

This article reports on a study of members of the Divorce Cooperation Institute (DCI), a group of Wisconsin lawyers who use a Cooperative process to provide a constructive and efficient negotiation process in divorce cases. The study involved in-depth telephone interviews and several surveys of DCI members. Although DCI members use this process only in divorce cases, it can be readily adapted for other types of cases.DCI\u27s approach generally involves an explicit process agreement at the outset, based on principles of: (1) acting civilly, (2) responding promptly to reasonable requests for information, (3) disclosing all relevant financial information, (4) obtaining joint expert opinions before obtaining individual expert opinions, (5) obtaining expert input before requesting a custody study or appointment of a guardian ad litem, and (5) good-faith negotiation sessions, including four-way sessions where appropriate, to reach fair compromises based on valid information.The study describes how Cooperative Practice differs from traditional litigation-oriented process as well as Collaborative process. DCI members report that Cooperative Practice provides greater predictability and confidence than negotiation in litigation. Unlike Collaborative Practice, in Cooperative Practice, there is no disqualification agreement and thus Cooperative lawyers are not disqualified from representing clients in litigation if needed. Although Cooperative lawyers use many of the same procedures as in Collaborative Practice, they report using them selectively which they believe generally produces good outcomes as efficiently as possible.The article offers recommendations for lawyers who want to incorporate Cooperative Practice into their ADR toolbox, as well as for Cooperative and Collaborative Practitioners and ADR teachers and policymakers

Lessons From the ABA’s Excellent Report on Mediator Techniques

This post highlights findings from the report of the ABA Section of Dispute Resolution Task Force on Research on Mediator Techniques. The report identified 47 studies from the past four decades that analyzed effects of particular mediator actions on certain mediation outcomes. The Task Force found that none of the categories of mediator actions has clear, uniform effects across the studies. In general, the studies found that some generally uncontroversial actions – such as eliciting suggestions, focusing on emotions and relationships, building trust, expressing empathy, praising disputants, and setting agendas – may or may not produce positive effects. It found that some of the more controversial actions – recommending particular settlements, offering evaluations, and pressing parties to settle – have the potential for both positive and negative effects