Professor Kantor's section:This course introduces students to the concepts inherent in resolving disputes while utilizing processes other than traditional litigation. The most basic of these processes is negotiation. A lawyer cannot be a successful negotiator without the development of analytical skills to aid in understanding the totality of the dispute and the underlying interests of the disputing parties. In addition, a lawyer must have an appreciation for interpersonal skills necessary to become effective in communication, trust building and persuasion in an informal setting. Mediation is a somewhat more structured process of dispute resolution in which an outside neutral in engaged by the parties to facilitate the negotiation. Mediation advocacy presents a unique set of challenges not typically confronted by the courtroom advocate. Similarly, the skills required of a mediator are distinctly different from those required of a trial judge. Arbitration, summary jury trials and mini-trials are examples of other forms of alternative dispute resolution processes which are designed to enable parties to resolve disputes more quickly and inexpensively.Using case books and related materials, Jonathan Harr's A Civil Action (Vintage paperback edition), and running simulation exercises, students will develop an understanding of these alternative dispute resolution processes, will learn to confront both strategic and ethical challenges presented in these exercises and to acquire the analytical and interpersonal skills necessary to effectively assist clients to resolve disputes without litigation. Students will learn to serve as an advocate in mediation, as a mediator and as an arbitrator of simulated disputes. In addition, we will consider issues of public policy dealing with judicial reform of dispute resolution processes.Professor Brooks' section:While difficult to precisely measure, it is estimated that between 95% and 98% of all civil actions are resolved short of trial. While many are disposed of via dispositive motion, the vast majority of cases are resolved through one or more means of Alternative Dispute Resolution (ADR). This class will explore the most common forms of ADR, from direct negotiation, to facilitative mediation, to binding arbitration. In addition to learning the technical aspects of employing one or more ADR procedures, including drafting of ADR clauses found now in many forms of commercial contracts, the students will engage in mock negotiation and mediation exercises to experience and learn some basic skills needed to employ these ADR procedures. For anyone interested in reading more about the serious decline in trials on the merits and the concomitant growth of ADR, students might wish to consult Going, going, but not Quite Gone, Judicature, Vol 101, No. 4, Winter 2017 Copyright Duke University School of Law.
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