September 21, 2012

Lawyer as a Problem Solver

A Collection of Lawyer as Problem Solver Exercises

These exercises were compiled for the Lawyer as Problem Solver workshops at the Legal Educators' Colloquium, cosponsored by the ABA Section of Dispute Resolution and the Association of American Law Schools and held in conjunction with the ABA Section of Dispute Resolution annual spring conference. This special workshop examines how exercises, role plays, and simulations can be most effectively used to develop the perspective of the lawyer as problem solver.

The Lawyer as Problem Solver workshops are organized by the Section of Dispute Resolution's Hewlett Lawyer as Problem Solver Committee. The Committee would like to thank all of those who have taken the time to create these innovative exercises and share them with their colleagues.

The authors of these exercises encourage other professors and teachers to use the exercises in their courses. In making these exercises available to dispute resolution educators, the Hewlett Lawyer as Problem Solver Committee hopes to increase the availability of teaching tools to teach the concept of the lawyer as problem solver.

A summary of each exercise is listed after the title and author. To see an entire exercise, click on the title. The Exercises are each in Adobe Acrobat format. You can download a free copy of Adobe Acrobat from http://www.adobe.com/.

Metropolitan Water District v. City of Riverport
Jeff Goldfien

This exercise involves the mediation of a legal dispute between two local government agencies with different functions but overlapping geographic jurisdictions. The simulation is designed to challenge the mediator in aiding the parties to move from adversarial position-based bargaining over distributive issues, to cooperative interest-based bargaining over broader issues of importance to both parties

Broken Squares: An Exercise Designed To Demonstrate The Shift From Individual To Cooperative Problem Solving
Beryl Blaustone

This exercise requires participants to analyze aspects of cooperative problem solving in group settings. Professor Blaustone also uses this exercise to discuss behaviors and attitudes that promote or detract from effective group problem solving activity.

Is Arbitration Arbitrary?
Chip Ossman

This exercise explores the arbitration process and examines the vagaries of arbitration results.

Case of James and Emma Herrod
John Lande

In this case, the central issue is how to divide the marital property. The simulation provides financial information and gives participants the opportunity to mediate property division and child support issues.

Representation of Clients in Mediation Roleplay: King v. Johnson and Jones
Julia Gold

Professor Gold wrote this exercise for use in her Negotiations class. The latter half of the course addresses assisted negotiations, and how attorneys and their clients can participate most effectively in a mediation.

The Martin Modification: Mediator Issues in State-Sponsored Programs
Suzanne Curran Carney

This simulation offers students an opportunity to participate in a very typical mediation experience. It is representative in two aspects. The subject matter is domestic relations and the mediation is provided through a government program.

Using Systems Design Methods to Promote Good-Faith Participation in Court Connected Mediation Programs
John Lande

Professor Lande created this exercise to see how different groups perceive court-connected mediation programs and mediation more generally. The exercise is designed to analyze issues about good-faith conduct in mediation and for designing court-connected mediation programs. It focuses on a dispute over whether a court-connected mediation program should retain a good-faith requirement. This simulation could be used in a variety of dispute resolution courses including mediation, dispute resolution survey, dispute system design, or group facilitation courses or modules, among others.

An Exercise in Drafting an ADR Clause
Suzanne J. Schmitz

In this exercise, students use problem solving theory to identify the ADR process most appropriate for a hypothetical client. Alternatively, the exercise can be used to introduce beginning students to the various forms of ADR and their salient characteristics by reducing the scope of the assignment.

Problem Solving Negotiations Exercise
Hal Abramson

This exercise is designed to highlight the differences between positional and problem solving negotiations as well as introduce the key features of problem solving negotiations. The exercise examines the difference between positions and interests, techniques for inventing options and creating value, a method for assessing options based on interests and objective standards, and the impact of the parties' BATNAs on the outcome.

THE IMPORTANCE OF F--- YOU
Nancy Welsh

Professor Welsh uses the simulation, "The Importance of F--- You," to demonstrate how attorneys' interviewing and counseling of their clients can either help or hinder problem solving.

When Cultures Clash
Lynn Malley

This exercise is designed to get students to think outside of a number of boxes - the adversarial legal box, the white male box, and the Western logical box, among others. As written, it would be useful in a class on crosscultural dispute resolution or on negotiation. With some modification, it could be used as a mediation or ombuds simulation.

Preventive Law: A Methodology for Preventing Problems
Thomas D. Barton

This exercise discusses the principles of preventive law as well as how preventive law can be taught. The exercise includes an example in how to teach a class to think preventively.

Integrating Problem-Solving and Problem Prevention into an Existing Law School Curriculum
Thomas D. Barton

This exercise discusses two options for how law teaching be broadened to address better the consensual and system design/prevention modes of problem solving: first, through adding more courses that particularly focus on those alternative modes; and second, through consciously articulating the consensual and system design modes in existing courses. Professor Barton elaborates the second option, suggesting ways that existing courses can be re-framed to increase their reference to the structures and skills of the consent and system design modes.

Law Partnership Negotiation
Kathleen Murphy

This exercise involves the negotiation of certain partnership issues by two lawyers who are planning to form their own law firm. Each student assumes the role of one of the prospective partners and negotiates with another student playing the role of the other party. The exercise is intended to help students develop their planning, problem solving and negotiation skills, and to reinforce their knowledge of substantive partnership law.