Teachers’ Suggestions on Using Video to Teach ADR Skills

I have organized comments received from law teachers on the ABA listserve under subject headings to make it easier for readers to follow. This sometimes required dividing people’s emails. I apologize for any resulting confusion or awkwardness of phrasing.

Dwight Golann

• ALI-ABA’s "Negotiation in the Practice of Law: A Video Companion," vignettes #1 and #3. I use these with a handout on the Harvard PON’s seven elements of negotiation. Vignette #1 is an excellent example of an effective negotiation; Vignette #3 is a fascinating example of an ineffective negotiation that ends in a death spiral.
   
• Positive Conflict Management’s "Boundaries: Sexual Harassment." I find this to be a particularly rich video. I use this to illustrate four different kinds of negotiation, managing power imbalances; handling high-conflict conversation without using caucuses, framing and reframing, the creation of a third story, the role of apology, etc., etc. Students write a substantial final paper analyzing this video using course concepts.
  
  ____Jim Holbrook HolbrookJ@LAW.UTAH.EDU
   
• "Negotiations"- Part of the Series "Dilemmas in Legal Ethics" produced by the American Bar Association,
   
• "Basics of Negotiation" produced by PLI, and
   
• "Negotiations of a Personal Injury" produced by Brigham Young University School of Law.
   

Each video is a basis for analysis and discussion respecting strategic and tactical choices, body language, ethical issues and problems of interpersonal relations. The frameworks for those discussions are models and behavioral science findings presented in A. Goldman & J. Rojot, Negotiation: Theory and Practice (Kluwer).

________Alvin Goldman University of Kentucky algold00@email.uky.edu

• Devil's Advocate: In one early scene, the character playing the Devil (Al Pacino) is asked by Keanu Reeves: Are we negotiating? He says always. I use this to illustrate the way that many people think of negotiation as an unseemly process. I also sometimes introduce how this may be gendered: women may think of negotiation as worse. This is consistent with work by Laura Kray at Haas Business School at Berkeley.
   
• Meet the Parents. The character played by Ben Stiller tries to get on the plane at the end and instead gets arrested. Dan Shapiro uses this to illustrate how negative emotions are created by the interaction.
   
• Defending Your Life. There's a past lives pavilion that shows people's past lives. I use this to illustrate the myth of personality -- the idea that somehow the way we are -- including the way we negotiate -- is fixed by experiences of the past
   
• Defending Your Life -- the lead character Brooks is shown planning to ask for a big raise but instead he is offered much less and accepts it. (Note: Marjorie Aaron at Cincinnati also recommends this humorous excerpt, noting that Brooks assures his wife that he’ll be tough, then crumbles immediately under pressure)
  
  ____Clark Freshman freshman@atlanticbb.net
   
• I’ve shown the L.A-based blockbuster Crash in two mediation classes, and it’s been stunningly successful. We use the film to talk generally about stereotypes and bias and ethnic conflict.
   
• I also have students tape themselves mediating a case and have them write a critique of their own performance. Then, with permission, the following semester, I use the student performance films in class and have other students comment on what they think went well and less well. If the performing students are game (and I do pick only the strongest egos of the bunch)- the exercise is really informative and productive. Oft-times the student being critiqued is the most engaged and thoughtful of the entire class.
  
  ____Ellen Waldman Thomas Jefferson School of Law ellenw@tjsl.edu
   
• I show the students Prof. Williams' Cottonburger negotiation to help illustrate his distinction between the competitive and cooperative styles
   
• Sometimes a clip from "The Fortune Cookie" to illustrate conventional distributive bargaining in a personal injury lawsuit.
  
  ____Lisle Baker Suffolk University Law School lbaker@suffolk.edu
   
• I show the “beard negotiation” scene from Monty Python’s The Life of Brian to encourage people to see haggling as a cultural ritual rather than as an expression of lack of personal integrity.
  
  ____Dwight Golann Suffolk University Law School dgolann@suffolk.edu
   
• One video I use from time to time is a short clip from A Civil Action where the parties ask the lawyer to get an apology. He comes back in a separate scene and tells them of the great monetary settlement he got and they are upset because they said they wanted an apology. It is good for mediation and client counseling.
  
  ____Jacqueline M. Nolan-Haley Fordham jnolan-haley@mail.lawnet.fordham.edu
   

• Saving the Last Dance: Mediation Through Understanding with Gary Friedman, Jack Himmelstein and Robert Mnookin, Produced by PON- Harvard and the Center for Mediation In Law. This is useful for demonstrating Friedman’s handling of lawyers and the shadow cast by legal norms, as well as artful treatment of strong emotions, re-framing, skillful use of active-listening, and clear introduction to the brain-storming phase.
  
  ____Ellen Waldman Thomas Jefferson School of Law ellenw@tjsl.edu
   
• West’s Dispute Resolution and Lawyers Videotape Series: “Mediation: The Red Devil Dog Lease.” I use this as an elegant example of reframing a distributive negotiation into an integrative one.
   
• CPR Institute for Dispute Resolution: “Mediation in Action: Resolving a Complex Business Dispute.” I use this as a typical example of a lawyer-represented complex business mediation, with initial, adversarial conflict stories, using caucuses to control unproductive emotion and do risk analysis, reframing a distributive negotiation into an integrative one, and the mediator’s giving an evaluation to overcome impasse in the final distributive negotiation stage.
  
  ____Jim Holbrook HolbrookJ@LAW.UTAH.EDU
   
• As noted in the article, I show short clips of mediators in first caucuses in Mediators at Work: A Case of Discrimination?, an old AAA evaluative tort video, Mediation in Action, and perhaps the contracting phase of Saving the Last Dance and ask students to classify the mediators on the Riskin Grid.
   
• I show long clips of Margaret Shaw in Mediators at Work to show good mediator practice.
   
• I use the first seven minutes of The Hackerstar Negotiation to show a terrific fight between partners in a software company, then ask students to pair off, one as the corporate counsel and one as Hacker, and have the counsel listen to Hacker as an “informal mediator.” The challenge is for the lawyer/mediators simply to listen for ten minutes to an unreasonable person without trying to solve problems, explain the law, get something done, etc. They often find it very difficult. (Doug Yarn reports that he used to show the entire Hackerstar tape, but found it too long.)
  
  ____Dwight Golann Suffolk University Law School dgolann@suffolk.edu
   

This year I took a chance and used two recent videos that are quite funny. I used them on the first day of my mediation clinic b/c they are fun and can get us started on some of the basic lessons of being a mediator. They are also great ice-breakers.

• The first is the first scene from the movie Wedding Crashers. It's risqué, but the students loved it (they even asked if we were going to see it when I said we were going to look at some videos). It opened class nicely for a discussion of things the mediators did well and what they didn't do well. (Doug Yarn has also shown the Wedding Crashers.)
   
• The second I used was the mediation episode of the Office on NBC. It is a disaster of a mediation, which leads to lots of what not to do. Of course this evolves into good basic lessons of what to do.
  
  ____Art Hinshaw Arizona State University Art.Hinshaw@asu.edu
   
• I have a quirky little cartoon film from Canada with a bullfrog mediating a dispute between two lizards over a bug. Unfortunately, the bullfrog takes a piece of the bug at the end...not a good example of disinterest. I produced my own film some years back that I use occasionally, but it the context is not useful. Most of the mediation films that I've tried are too long for a full showing and debriefing in a single class.
  
  ____Doug Yarn Georgia State Law School lawdy@langate.gsu.edu
   
• I have used “The Story of Qui Ju.”
  
  ____Myra Orlen Western N. E. College Sch. of Law morlen@law.wnec.edu
   

This year I took a chance and used two recent videos that are quite funny. I used them on the first day of my mediation clinic b/c they are fun and can get us started on some of the basic lessons of being a mediator. They are also great ice-breakers.

• ALI-ABA tape on the "jockey exercise" (negotiation of a fee for a jockey to ride a horse in the Kentucky Derby) created by Michelle Hermann, University of Arizona. (Doug Yarn also reports a good response to this video and exercise)
   
• U. of Missouri/Riskind tape on Thompson v. Decker med mal negotiation
  
  ____Diane Dimond, Duke Law School DIMOND@law.duke.edu
   
• To teach representation in mediation, I have students roleplay a simplified version of the Waltham v. Foster Fuels case (which I would be glad to send out), then show them clips from Representing Clients in Mediation, in which practicing lawyers represent clients in the same case.
   

I also ask students to bargain over the selection of a mediator, using the resumes of five local mediators, and ask for strategy papers on how they plan to enlist the mediator’s help to achieve their bargaining goals.

____Dwight Golann Suffolk University Law School dgolann@suffolk.edu

• I have students tape themselves mediating a case and have them write a critique of their own performance. Then, with permission, the following semester, I use the student performance films in class and have other students comment on what they think went well and less well. If the performing students are game (and I do pick only the strongest egos of the bunch), the exercise is really informative and productive. Oft-times the student being critiqued is the most engaged and thoughtful of the entire class.
  
  ____Ellen Waldman Thomas Jefferson School of Law ellenw@tjsl.edu
   
• One year I had all my students film themselves negotiating and I took parts of those films and spliced them together to make points...way too much work!
  
  ____Doug Yarn Georgia State Law School lawdy@langate.gsu.edu
   
• I videotape student simulations for them to review (when they act as neutrals). I also videotape student seminar presentations and in-class feedback so they can concentrate on presenting and responding, rather than taking notes on what is said by their peers or by me.
  
  ____Lisle Baker Suffolk University Law School lbaker@suffolk.edu
   

• I use film clips not only for ADR, but also to enliven my teaching of courses such as Civil Procedure.
  
  ____Jim Coben Jcoben@gw.hamline.edu
   
• I used to run PON's The HackerStar Negotiation and would show Fisher's companion video afterwards, but it is too long. In fact, length is the big problem with most of the films we have available. (The issue of length has also been raised by other teachers.)
  
  ____Doug Yarn Georgia State Law School lawdy@langate.gsu.edu