Spring 2014 Newsletter

          Chicago Mediation Team: (LtoR) Brian Lowry, Eddy Mata, Kyle Bonacum, Mike LaFond, Robert McBride and Nick Yu

          Advanced Mediation and Conflict Resolution Practice with Teresa Carey
          April 19, 26 & May 3

          In response to numerous requests for additional opportunities to hone mediation and dispute resolution skills, CNDR is offering this 3-day MCLE event.  The program will focus on moving through impasse, understanding communication and Advanced Mediationmanaging interpersonal dynamics, managing monetary negotiations (including mixed-motive exchanges and multi-party disputes), dealing with difficult people and problems, and working with psychological, emotional and inter-cultural considerations.  Participants will learn through discussion, simulations and personalized coaching.

          Teresa Carey, J.D. is a professional Mediator and Mediation Instructor.  Drawing on over 25 years of experience, she is known for her insight, skillful approaches to resolving conflict, excellent communication skills, and outstanding teaching abilities.

          This activity has been approved by the State Bar of California for 18 MCLE credits, including all required credits in specialized areas:  4 credits Legal Ethics, 1 credit Elimination of Bias and 1 credit Substance Abuse.

          See more information and Register

          Online Dispute Resolution Forum & Hackathon
          June 21-27, 2014

          For the first time in its 12 year history, the Online Dispute Resolution Forum will be held in the United States, co-hosted by Tech for JusticeUC Hastings and Stanford Law School.  The Online Dispute Resolution Forum (ODR 2014) is an international conference on Online Dispute Resolution, bringing together the technology and dispute resolution communities, legal practitioners, mediators and other ADR professionals, academic researchers, financial institutions, ecommerce companies and social media companies, members of judiciaries worldwide, and social justice advocates using innovative technologies to leverage change.

          The program spans several days, starting on Saturday, June 21st with the Tech for Justice Hackathon in San Francisco. This will be the first ever dispute resolution hackathon, where participants will spend the weekend tackling a set of access James Silkenatto justice problems and producing prototypes that will be curated and presented to audiences on June 25th at UC Hastings.  Jim Silkenat, President of the American Bar Association, will present the awards to the hackathon winners.

          Tours of Facebook, eBay, Google and Apple will take place pre-conference on Tuesday, June 24th.  UC Hastings will host the first day of the conference on June 25th which will focus on such themes as best practices, increasing trust, managing reputation and customer satisfaction.  Themes addressed on the two days at Stanford will include privacy, healthcare and patient engagement, intellectual property, cross-border consumer disputes, peacebuilding and human rights, family and divorce ODR, and multiparty resolution.

          ODR 2014 is the result of a collaboration of a number of organizations, in addition to UC Hastings and Stanford Law: Modria, the world’s leading online dispute resolution company; the Internet Bar Organization, dedicated to bringing high quality programs, publications and research to lawyers who are practicing in the virtual, digital environments; and the National Center for Technology and Dispute Resolution, which supports and sustains the development of information technology applications, institutional resources and theoretical and applied knowledge for better understanding and managing conflict.

          See more information and Register

          Summer Programs - J.D. Courses & Professional Training

          As part of UC Hastings Summer Legal Institute, CNDR offers 2 sections of Intensive Negotiation and Settlement, taught Negotiation Classby Adjunct Professors Jason Meek and Clint Waasted, to any J.D. student currently enrolled and in good academic standing at an ABA-accredited law school and to UC Hastings LL.M. and MSL students.  Negotiation and Settlement is the pre-requisite course for CNDR’s advanced courses, such as Mediation and The Art of the Deal.  For more information and to register, go to http://www.uchastings.edu//academics/summer-institute/index.php  

          In addition, CNDR offers Mastering the Fundamentals of Mediation, a 40 hour Certificate Program for attorneys and other professionals.  The program provides a unique blend of mediation theory, hands-on mediation skills training and an exploration of the sensibilities and personal qualities required to be an effective mediator.  Taught by Jessica Notini, the course includes 40 MCLE credits, including 1.5 hours Elimination of Bias and 2 hours Legal Ethics.  For more information and to register, go to http://cndr.uchastings.edu/professionals/mediation-certificate.php

          Northern California ADR Faculty Teaching Conference
          by Sheila Purcell

          On February 1, 2014  the UC Hastings Center for Negotiation and Dispute Resolution and the Gould Center at Stanford Law School co-hosted the Northern California ADR Conference.  Faculty and adjuncts from law schools such as Berkeley, Stanford, UC Hastings, Santa Clara and USF joined undergrad and Business School faculty from San Jose State, San Francisco State and Berkeley’s Haas Business School. Scholars and practitioners included Melissa Nelken, Santa Clara Law Dean Lisa Kloppenberg, Carol Izumi, Jay Folberg, Jan Martinez and many others.

          Michael WheelerWe kicked off with Keynote speaker Prof. Michael Wheeler from the Harvard Business School whose new book, “The Art of Negotiation: How to Improvise Agreement in a Chaotic World,” was just published by Simon & Schuster. Discussion centered on what we as students and practitioners of negotiation arts have to learn from the world of jazz, improvisation comedy, psychotherapy and military strategy about staying nimble and strategically agile in the often unpredictable negotiation process.

          Mark PerlumutterMichael’s conceptual framework was followed with presenter Mark Perlmutter, (University of Texas School of Law and now an adjunct at UC Hastings) who demonstrated a role play that drew out the pressures and pitfalls of playing "hardball", managing one's client during a negotiation, and staying mindful of potential ethics violations.  In addition to being able to improvise as a client's behavior threatens the negotiation, Mark explored how using emotional intelligence with one's client and opposing counsel can help avoid ethical mishaps while still pursuing one's overall strategy for settlement.

          Debra GerardiOur final afternoon session led by Deb Gerardi, a healthcare conflict engagement specialist, picked up on Michael’s themes with two provocative hours of experiential activities drawn from her decades of work in the field of improvisational comedy and applied improvisation. This helped us all consider how to best activate and use student’s capacity to sense and respond in negotiation and ADR situations that require presence, focus, deep listening and recognition of offers. The days evaluations indicated that our session leaders were very well received for the mix of theory, practice, fun and collegiality that they each engendered.

          My co-host, Jan Martinez, Director, Stanford Gould Negotiation and Mediation Program, and I were happy to work with our colleagues from throughout the region and hope others from around the country can join us next year for a great chance to learn from each other about our best teaching efforts and ideas.

          Change Agents & Careers in ADR or "Why I Made the Trip from Napa"
          by Roger Moss, UC Hastings '85

          2014 ADR Career Speaker Series“Transformed people transform people,” writes a Franciscan mystic. Unexpectedly, this idea animated the 2014 Spring Speaker Series, The Young & The Employed. The presenters’ wisdom was impressive, but their passion, centeredness, dedication, and humility spoke to the heart. These professionals made superb marketing and business suggestions, while demonstrating the synergies of public service and private practice.

          Nicole Gesher operates a solo mediation practice. Shirish Gupta balances litigation and mediation, grounded in savvy Internet marketing. Jacquelyn Brown meets a public need with a private platform. Russell Brunson deploys and teaches flexible negotiation skills in the non-profit environment.

          All of the speakers confronted a common obstacle; they were attracted to collaborative process but were told that working in the ADR arena required “grey hair” and decades of conventional practice. Undaunted, each took interim legal positions as they prepared to courageously follow their hearts.

          Their attraction to alternative models emerged from experiential, service-related undertakings.

          Nicole discovered the magic of mediation in small claims court, doing clinical work at UC Hastings; Russell tutored math to urban youth during law school, so he could “stay connected to the larger world.” Working for the San Mateo Court, Jacquelyn observed the increasing numbers of “gap” clients, people who don’t qualify for financial assistance but can’t afford legal help. To address this need, she offers “limited-scope” representation and “unbundled” service products.

          The speakers acknowledged the critical role that spouses and significant others play in supporting their efforts. These expressions of gratitude were humbling to hear, but also point to a deep understanding of human interdependence. They suggest that when empathy and collaboration operate at home, they will manifest in the interstitial space of community.

          Roger MossShed convention. Reject dualism. Embrace alternate paths. Fearlessly ask for help. Be true to self, while serving others. We heard from four people, engaged in divergent roles, who have tapped into a source of potent personal power with significant implications for our profession as well as the community beyond.

          Roger Moss is a mediating attorney based in Napa, CA, primarily focused on business, real estate and recovery issues. Learn more at www.pacificbridgemediation.com.

          "Defining Death in America" Panel

          The UC Hastings/ UCSF Consortium on Law, Science and Health Policy sponsored an intriguing Grand Rounds panel discussion on February 26th at UCSF’s Parnassus Campus. The session, Defining Death in America: The Intersection of Law, Medicine, Ethics & Politics, was presented in response to two recent cases that drew national attention regarding continuation of medical care after the brain death of a patient.

          Debra GerardiRepresenting CNDR, panelist Debra Gerardi, RN, MPH, JD discussed the needs of patients and families in the midst of contentious decision-making during medical care and in response to adverse outcomes. She identified how health professionals can better engage in conflicts at end of life and further align approaches to conflict with the relational nature of providing patient care.

          The cases studied were very different situations involving patients who were declared brain dead by the medical community but whose treatment was continued. In the case of Jahi McMath, the family of a 12-year old girl insisted on the transfer of their daughter out of Oakland Children’s hospital for continued care, despite the hospital’s contention that having been declared brain dead, the child was no longing living and should not be given ongoing medical care. The family contended that their religious beliefs did not align with death as defined by brain death but rather by cessation of heart function.

          In a very different Texas case, the family of Marlise Munoz requested that all treatment be discontinued after she was declared brain dead, but under Texas law, the hospital contended that they were not able to discontinue medical care due to the provision in state law requiring that pregnant women be maintained on life support pending the delivery of the fetus.

          Both of these cases involved judicial determinations to decide the outcome and both cases involved a great deal of conflict between the families and the healthcare facilities as well as public debate regarding definitions of death. In the case of Jahi McMath, the court ordered the hospital to release the patient to the coroner who in turn released her to the family for transfer to an undisclosed care facility. In the case of Ms. Munoz, the court ordered that medical treatment be discontinued acknowledging that the law was misinterpreted by the hospital and that the statute required clarification with regard to  medical decisions made on behalf of pregnant women who are declared brain dead.

          Other panelists included: David L. Faigman, JD, UC Hastings College of the Law; Robert V. Brody, MD, UCSF; Radhika Rao, JD, UC Hastings College of the Law; J. Dawn Waters, MD, Stanford Hospitals & Clinics; and Steve Pantilat, MD, UCSF.

          This was the second collaboration between CNDR and the UC Hastings/UCSF Consortium.  The first was the screening and discussion of The Waiting Room, a documentary film shot at Highland Hospital’s Emergency Room in Oakland.

          ADR Team News

          Liberty U. 2014 Negotiation ChampionsAfter a very successful ADR competition season last fall, UC Hastings ADR Team rang in the New Year with another win.  Stacy Boven and Mike LaFond won 1st place the 2014 Liberty University National Negotiation Competition in Lynchburg, VA. Mike Callahan-Dudley and Josiah Houck were also finalists at this competition, finishing in 5th Place.  This is the second year in a row that UC Hastings has won the Liberty competition, and the 4th year in a row that both of our teams have finished in the top 5 at Liberty.

          Last fall we reported that 1Ls Danielle Chang and Justin Page placed 4th at the ABA Regional Negotiation Competition, hosted by UC Berkeley.  It turned out that the first 3 teams tied for Justin Page and Danielle Changfirst, and according to the ABA, that made Danielle and Justin 2nd Place winners, qualifying for the National Competition. Erika Schmidt, UC Hastings ’13, volunteered as Assistant Coach and the three flew to Chicago where Danielle and Justin advanced to the National Semi-finals and finished 7th Place in the Nation, beating the teams that had finished ahead of them in Berkeley.

          At the Great Lakes International Mediation Competition at Michigan State School of Law in East Lansing, Michigan, UC Hastings brought home the top honors:  Danielle Bogaards, Mary Great Lakes Champion TeamChamaki and Maya Ziv won 1st Place in Team Mediation, and took 2nd Place in Team Overall (mediation and advocacy combined).  Mary Chamaki and Maya Ziv tied for 2nd Place as Individual Mediators. James Kachelmeyer, Hannah Worek and Daniel Brannick placed 5th in Team Overall.

          The ABA Regional Representation in Mediation Competition was held at the University of Idaho College of Law in Boise this year, and after an epic road trip Brighid Fogharty and Jon Tong took 3rd Place.

          2014 Chicago Mediation TeamIn the cold, windy city of Chicago, Mike LaFond finished in 3rd Place out of 156 mediators at the 2014 International Academy of Dispute Resolution International Mediation Tournament, which features 52 teams from all over the world. (Mike is 3rd from the left) 

          The team has one more competition this spring, and it’s a big one.  The Negotiation Challenge, the first international negotiation competition in Europe, provides business and law students diverse venues in which to negotiate complex business deals.  This year’s Negotiation Challenge will be held in Reykjavik, Iceland.  Wish us luck!

          Our deepest thanks go out to all of our community and alumni supporters who coached the team throughout the year, judged during the In School Competition, and contributed to our ongoing success.  The ADR Team is part of a larger team’s success, and we are grateful for your enthusiastic support.

          Teaching Notes

          The Mediation Clinic launched a new partnership this semester with the San Francisco Human Rights Commission (SF HRC).  This partnership represents the mutually beneficial product of extensive planning and collaborative design Mediation Clinicefforts of UC Hastings’ Clinical Professors Carol Izumi and Gail Silverstein and HRC staff members Zoë Polk and Mullane Ahern.  The SF HRC, an executive branch agency, is charged with enforcing non-discrimination laws related to housing, employment, and public accommodations.  Through the new institutional relationship, Mediation Clinic students attend intake interviews with members of the public, receive training and instruction from HRC administrators, and co-mediate discrimination complaints at the HRC office nearby on Van Ness Street.  The HRC cases provide an extraordinary educational and public service opportunity for Mediation Clinic mediators that supplements the weekly work they do mediating Small Claims cases at San Francisco Superior Court.

          ICC Think TankAdjunct Professors Jason Meek and Mary McLain served on the "Think Tank" that designed, presented, and facilitated the First International Mediation Round Table sponsored by the International Chamber of Commerce in Paris, which kicked off Mediation Week 2014.  The “Think Tank” Pictured: (l-r) Greg Bond (Germany), Alan Limbury (Australia), Geoff Sharp, Mary McLain and Jason Meek.  See more>  http://www.iccwbo.org/News/Articles/2014/ICC-Mediation-Week-opens-with-new-ICC-International-Mediation-Roundtable/

          CNDR Director Sheila Purcell and Janet Martinez, Director of the Gould Negotiation and Mediation Program at Stanford Law School, recently published Mediators in the Field: Experiences Around the Globe in the ABA’s Dispute Resolution Magazine Vol. 20 (2014).  Sheila and Jan surveyed 154 mediators from 11 countries to get data on their mediation practices and how deeply people in their communities accept mediation as a dispute resolution option.

          Professor Emeritus Melissa Nelken and former Adjunct Professor Maria Joseph are teaching a 13-week negotiation and mediation course to inmates at San Quentin Prison as part of the prison's two-year Associates' Degree program. CNDR coaches in the class have included Jolynn Jones, Chris Knowlton, Elaine Leitner, Stephen Liacouras and Amy Slater.

          Eileen Barker, practitioner, trainer and former adjunct professor, published The Case for Forgiveness in Legal Disputes in Pepperdine Dispute Resolution Law Journal Vol. 13 (2013).  Eileen writes, “Although the notice of forgiveness may seem far afield from the world of law, forgiveness is a powerful and important tool for conflict resolution. Litigants need legal solutions, but they also need peace, healing, and closure.  Forgiveness provides a vehicle for achieving all of these.”