Sowing Mediation Seeds Around the World

Volume 19 No. 1

By

We know little about Frank Sander as a professor of tax law or family law (except, of course, that he gained tenure at Harvard teaching those subjects), but because we have had the privilege of teaching a weeklong mediation workshop with him for almost three decades, we know much about how Frank has changed many people’s lives in only five days. Perhaps the workshops helped Frank, too: Frank’s wife, Emily, liked to say that once Frank switched from teaching tax to teaching mediation, he hung out with much nicer people. (Our students, like us, always loved it when Frank quoted Emily.)

Our joint enterprise began back in the 1980s, when Frank started teaching a mediation course at the law school, long before mediation and conflict resolution became trendy, especially for lawyers. We were living in the Washington, DC, area, and Frank would call and ask Linda, whose extended family lived in Boston, whether it wasn’t time for her to visit her parents in Jamaica Plain. Of course, we needed no such incentive. We started to collaborate with Frank on a weekend skills training for his mediation course.

After a few such weekends, Frank told us about Harvard Law School’s continuing education program aimed at alumni, called the Program of Instruction for Lawyers, or PIL. Practicing lawyers would come to Cambridge for a week or two to brush up on the latest wisdom in constitutional law, business planning or jurisprudence. Classes lasted one hour, and people could take two or three courses at a time. Frank’s suggestion of a five-day all-day workshop on mediation, emphasizing skills as well as theory, was pretty revolutionary. Admitting “non-lawyers,” including teachers, clergy, accountants, doctors and hospital administrators, to name a few, was even more so.

The three of us developed a weeklong workshop that was not just training in mediation but a course that exposed participants to Sander-level theory and forced them to consider the issues related to using mediation in various contexts and for varied subject matters. If one took what has become a regular law school mediation course, crammed it into five days and designed it for adults with extremely varied experiences, you would end up with a rough facsimile of the Harvard Mediation Workshop.

The course was limited to 45 participants. How we arrived at that particular number none of us can now remember, but the number has led to group discussions of considerable substance. To afford as much individual practice and feedback as possible, we also broke the large group into four or five smaller groups. Occasionally a professional mediation colleague joined as a fourth teacher, but over the years we began recruiting a fourth and then a fifth teacher from previous workshop participants. This had the advantage of bringing fresh blood into the teaching team but the disadvantage of having to work through the choreography and logistics of the course each time we brought on a new colleague. We hit pay dirt about 10 years ago, when Los Angeles-based lawyer-mediator Greg Derin attended the workshop and indicated he would enjoy teaching with us. For the last 10 years, Greg has been a member of the teaching team and the course has gone as smoothly as ever.

The workshop was a mixture of lecture, discussion, some audio-visual presentation and, of course, actual practice mediating. The mediation simulations were designed to provide participants with hands-on mediating experience in different contexts – primarily business, education and public policy – as well as raise practice and ethical issues. One highlight was an afternoon and evening segment in which the participants, divided into groups of three, received descriptions of three disputes. Each participant spent an hour mediating one of the conflicts, with the other two acting as the parties. The next morning, we debriefed.

Our general teaching philosophy encouraged participants to “do” rather than talk about doing. This tended to reduce the amount of pontificating and, we believed, led to better learning. The philosophy perhaps played best in the segment in which we presented ethical dilemmas in various mediations, had the teachers play the parties and forced the participants to mediate their way out of the challenges.

On Friday morning, we shifted to focusing on how participants could use what they had learned in their professions. For this, we often brought in local practitioners, including our brother-in-law Jim McGuire, who is uniquely qualified to provide advice on how to incorporate mediation into existing law practices, the emerging role of settlement counsel and how to enhance the representation of clients in mediation and other forms of dispute resolution.

The final session of the workshop consisted of topics suggested by the group: sometimes these were ideas we had covered that participants wanted to explore further, and sometimes they were brand-new. (To give us time to prepare, we asked participants to submit their topics before lunch, so we could be ready for the mealtime discussion.) As the years passed, we came to expect some subjects – such as how to handle impasse, how to build a mediation practice, and how to think about liability and insurance – but we often encountered entirely new questions, which made our discussions especially lively.

Frank’s – and Harvard’s – gamble paid off. An increasingly diverse group (still primarily, though not exclusively, lawyers and judges) signed up, and even after we began offering the course two or three times a year, the waiting list grew to four or five years. Our only requirement was the ability to speak and understand English, and people came from all over the world.

What fun we all have had. When asked to play roles, even the most stodgy attendees loosened up; when mediating for the first time, even the most pompous were humbled. We will long remember the workshop participant who, after about a minute in the mediator’s chair, looked up and said, “I don’t have a clue about what I am doing. This is hard!”

Whatever question was asked, Frank always could be counted on to cite from memory the precise pages of the “Red Book” (Dispute Resolution: Negotiation, Mediation, and Other Processes) in its frequently changing editions, for a fuller discussion of the subject, connecting each practical problem with its theoretical and perhaps historical context. Frank’s quick wit and dry humor also kept us from getting too pedantic; we sometimes sounded more like the Marx brothers than a Harvard Law School teaching team. For the few free evenings, Frank provided all of us with the latest version of “Sander’s Good Eats,” which we could count on to guide us to a full range of Cambridge and Boston’s best restaurants.

The big highlight of the course was the evening when Frank and Emily opened their Cambridge home to the workshop participants for an intimate party. Because the teaching team usually was busy right up until party time, most of the preparations fell to Emily, who always provided fabulous food and flowers and graciously welcomed the participants. Equally welcome were spouses and partners – in Harvard parlance, “the person without whom we couldn’t understand you.”

When participants invited us to give the course in other parts of the world, Emily accompanied us, painting beautiful watercolors of the varied sites while we taught. Our foreign ventures began in Toronto, where we conducted courses for the Ontario Advocates’ Society for a few years. One participant of the course at Harvard arranged for us to teach in Vancouver, and we will never forget the post-teaching sails there that began at 9 p.m. We taught in Australia, and we taught in New Zealand. In each location the courses went well, in the process giving us an excellent opportunity to learn about those countries so far from us. In Norway, we taught three summers in a row, the first time in a resort outside Bergen and then in the Lofoten Islands, north of the Arctic Circle, once home to major cod fisheries. On the one afternoon we had free there, we were fortunate that the sun appeared. In the third year, when we taught in a town close to the Swedish border, the site of the world’s oldest copper mine, none of us remembers seeing the sun at all.

The workshops outside the United States allowed Frank to do what he continues to do best – get people to consider whether including mediation in their legal scheme made sense, not to follow some rote pattern dictated elsewhere. With the Australian federal judge who described sitting outside with aboriginals to discuss land claims and with the Norwegian judges who were mediating in their courthouses, Frank’s overriding goal was to prompt people to think critically about what they were proposing.

When the Program of Instruction for Lawyers wound down, both the mediation and the growing number of negotiation courses migrated to the Program on Negotiation. Through the auspices of the Harvard Negotiation Institute, the course continued twice a year through June 2012. Sadly, this year Frank decided to take a well-deserved retirement from all teaching. 

What does this teaching leave behind? Every year, when we attend the ABA Section of Dispute Resolution’s annual meeting, we are overwhelmed to see former students and hear them say that the course Frank initiated at Harvard changed their lives. Perhaps even more important, Frank planted seeds that have germinated throughout our legal culture and in many countries of the world. In recent years, fewer than half the participants in the mediation workshop have come from the United States, and many former students are working hard to introduce mediation into different, not always receptive, legal cultures. In doing so, they take their inspiration from Frank.

Linda Singer and Michael Lewis have trained thousands of professionals, students and volunteers worldwide through the Mediation Workshop at Harvard Law School's Program on Negotiation  as well as for the CPR Institute for Dispute Resolution. Singer and Lewis, affiliated with JAMS, were instrumental in forming the Center for Dispute Settlement in 1971 in Washington, DC, which has experimented with, developed, operated and evaluated various ways of settling disputes, primarily through mediation, in neighborhood justice centers, courts and organizations such as schools, prisons and hospitals. They can be reached at mlewis@jamsadr.com and lsinger@jamsadr.com or at www.jamsadr.com.

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DISPUTE RESOLUTION MAGAZINE is published quarterly (4 times a year) by the American Bar Association Section of Dispute Resolution. Dispute Resolution Magazine provides timely, insightful and resourceful information regarding the latest developments, news and trends in the growing field of dispute resolution throughout the world and features internationally-known scholars and practitioners as authors.

 

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Chairs
Joseph B. Stulberg
The Ohio State University Moritz College of Law
Columbus, OH

 

Nancy A. Welsh
Penn State University, Dickinson School of Law
Carlisle and University Park, PA

 

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Frank Sander
Cambridge, MA

 

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James Coben
Hamline University School of Law
St. Paul, MN

 

Geetha Ravindra

International Monetary Fund

Glen Allen, VA

 

Michael Lewis
JAMS
Washington, DC

 

Bennett G. Picker
Stradley Ronon
Philadelphia, PA

 

Donna Stienstra
Federal Judicial Center
Washington, DC

 

Zena Zumeta
Mediation Training & Consultation Institute
Ann Arbor, MI

 

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