Workshop Program

II. What specific gaps exist?

- Much ADR teaching assumes that through enlightened bargaining techniques lawyers can eliminate the need to engage in positional negotiation.

- We often present distributional techniques as undesirable and even shady, and advise students to focus exclusively on parties' interests and relationships.

- Casebooks and videos center on problems that have a heavy bias in favor of relationship repairs and other interest-based settlements.

- Student ADR competitions focus exclusively on "nice" bargaining skills.
By contrast, lawyers and professional mediators report that monetary bargaining is endemic in legal mediation, relationship repairs are infrequent, and that a broadly facilitative approach can reduce, but does not eliminate, distributive bargaining. The result: ADR students receive a distorted picture of the world they will enter and fail to acquire necessary skills.

III. What could be done?

- Students should be taught that integrative bargaining and relationship-building are important and often-neglected aspects of law practice, and they should learn techniques to achieve these goals.

- It is also essential, however, to prepare students for the Hobbsean world of law practice. We can do this by:

- Presenting a realistic picture of the methods that currently dominate legal mediation and negotiation. Advocating a better approach to dispute resolution, but not obscuring what students will actually encounter.

- Teaching students both positional and integrative methods. Presenting distributive approaches as a legitimate, widespread, but risky, option.

- Teaching students how to explore integrative options while protecting clients from distributive responses.