Expert Information and Expert Evidence: A Preliminary Taxonomy

Federal Rule of Evidence 702 speaks in very general terms. It governs every situation in which scientific, technical or other specialized knowledge will assist the trier of fact, and provides that, in that situation, a witness qualified as an expert by knowledge, skill, experience, or education, may testify thereto in the form of an opinion or otherwise . . . .\u27 In 2000, following a trio of Supreme Court cases interpreting Rule 702, the Rule was amended to include a third requirement, in addition to the helpfulness of the testimony and the qualifications of the witness: reliability. Under Rule 702 as amended, a qualified witness may only provide expert testimony if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Building the Emotionally Learned Negotiator

This piece reviews three recent books on the significance of emotion in negotiation and dispute resolution (Fisher & Shapiro: Beyond Reason: Using Emotions as You Negotiate; Peter Ladd: Mediation, Conciliation and Emotion: A Practitioner\u27s Guide for Understanding Emotions in Dispute Resolution; and Lacey Smith: Get It! Street-Smart Negotiation at Work: How Emotions Get You What You Want), situating each work within a theory of practice for emotionally learned negotiators. After discussing the how the appearance of emotional sterility became synonymous with professionalism (and the toll this has taken on professional interaction), the piece sets forth a functional theory of emotion in negotiation based on four elements: emotion as (1) ether, (2) obstacle, (3) episteme, and (4) instrument. To cast emotion as ether (the ether of human experience) is to understand the inevitability of emotional impacts on negotiated exchange. For many, emotion in negotiation is encountered as an obstacle (that which obstructs mechanical application of established negotiating techniques). The more sophisticated negotiator recognizes emotionality as episteme (the medium of insight by which we consult interests and hypothesize about others) - a means for better understanding herself, the people she deals with, and a good deal else about the world. Finally, the emotionally learned negotiator uses emotion not only epistemologically but also instrumentally (as a tool for achieving desired ends), taking affirmative steps to help manage the emotional climate within a negotiation. She uses her emotional skills to mitigate undesired emotions and engender preferred emotions within herself and other participants: to soothe, bolster, win respect, build trust, and encourage creativity. The emotionally learned negotiator thus uses emotions not only as tools of knowing, but as instruments of persuasion. The new series of books on the subject offer strategies by which negotiators can learn to better integrate emotional skills into negotiation, among the most emotionally-charged of professional spheres. While the three books share the central premise that emotionality plays a critical role in the unfolding dynamics of all negotiations, each offers its own primary lesson. Lacey Smith\u27s business-oriented Get It! examines how the emotions of hope and fear can be both tools and obstacles to the interest-based bargaining method we first learned in Roger Fisher\u27s classic, Getting to Yes. Fisher and Shapiro\u27s Beyond Reason takes the Getting to Yes method to the next level of sophistication, providing a taxonomy of core emotional concerns that underlie individual negotiators\u27 behavior, and with it a Seven-Elements - like structure from which to prepare, advance, and overcome emotional obstacles in each negotiating context. Peter Ladd\u27s Mediation, Conciliation and Emotions expands the analysis of emotional content in a negotiation from the individual to the shared experience, exploring the establishment of emotional climates that arise between individuals and offering empirically based counsel for mediators and conciliators about how to help remedy undesirable emotional climates and create emotional climates more conducive to problem-solving. No book has all the answers we need, but each makes a valuable contribution to the field

Making Peace with Your Enemy: Nelson Mandela and His Contributions to Conflict Resolution

This is a transcription of the tenth anniversary celebration of the Saltman Center for Conflict Resolution at the William S. Boyd School of Law, University of Nevada, Las Vegas. The event was held in honor of NelsonMandela, and included a panel discussion about his contributions to the dispute resolution field. Panelists included Dean Penelope Andrews of the University of Cape Town Faculty of Law, Prof. Carrie Menkel-Meadow of the U.C. Irvine School of Law, Prof. Robert Mnookin of Harvard Law School, and Judge Richard Goldstone, a former member of the Constitutional Court of South Africa. An introduction was made by Dean Dan Hamilton of the Boyd School of Law and Prof. Jean Sternlight, Director of the Saltman Center. Prof. Andrea Schneider, Director of the Marquette University Law School Dispute Resolution Program, delivered opening remarks and led the panel discussion

Henry Kissinger: Negotiating Black Majority Rule in Southern Africa

In 1976, United States Secretary of State Henry A. Kissinger conducted a series of intricate, multiparty negotiations in Southern Africa to persuade white Rhodesian leader Ian Smith to accede to black majority rule. Conducted near the end of President Gerald Ford’s term in office, against substantial U.S. domestic opposition, Kissinger’s efforts culminated in Smith’s public announcement that he would accept majority rule within two years. This set the stage for the later Lancaster House negotiations which resulted in the actual transition to black majority rule. The account in this working paper carefully describes—but does not analyze nor draw lessons from —these challenging negotiations. Forthcoming papers will provide analysis and derive general insights from Kissinger’s negotiations to end white minority rule in Rhodesia