“Could we try and mediate over the phone?” I was a bit surprised by the response from the attorney when I called to let him know that the Small Claims Mediation Clinic’s courthouse mediation options had been curtailed by the Coronavirus. The Clinic, which was started by former Wisconsin Supreme Court Justice and retired MULS Professor Janine Geske, has been in operation since 1998. A typical Clinic day revolves around same day referrals for mediation cases from Court Commissioners in Room 400 of the Milwaukee County Courthouse. Cases are mediated then and there. In addition to the typical same-day referrals, this semester the Clinic received a number of referrals from judges dealing with civil cases. This particular case, a dispute between relatives, seemed tailor-made for mediation. I hesitated for just a second before saying yes, we would try mediating the case by phone. Continue reading “Student Lessons on Distance Mediation”
Hi all–I talked about this at the ABA meeting resource share but also wanted to blog about this in a little more detail. Apologies for the length–do reach out if you are interested in learning more and I’d be happy to walk you through what I did. In short, this was totally worth it and I felt like the class organization and teamwork reflected exactly what we are trying to achieve. Let me explain:
Team-Based Learning, or TBL, is a concept that I first learned that about in an article by Melissa Weresh applying TBL in the legal writing classroom. After reading Weresh’s article, I thought it would be an interesting concept to incorporate in my Alternative Dispute Resolution course. The ability for students to work together in groups is something that I have done for years, but this added a different flavor to it as the groups were for the entire semester—allowing for developing chemistry and comfort with working with the same group members for an extended period of time (much like they will once they graduate.)
Up to this last year, I would teach the ADR course in three sections (1) negotiation, (2) mediation, and (3) arbitration. Three quizzes for each section acted as “mini-capstones” to end a section. This both allowed for a more focused assessment on the content area and a clear division between the material for the students. But, I felt like students crammed for the one-time quiz as opposed to reading throughout the semester. Additionally, taking a whole class period to quiz the students and then time to review the quiz in the next class felt like too much time devoted to assessment versus learning.
So, I decided to try the TBL ideology. Continue reading “Team Based Learning in ADR”
On Sunday afternoon, we headed to the West Bank aka Palestine, and again had an amazing new experience for me. It was also pretty impactful for the students as you will read below. We had with us for the entire afternoon, the very talented Riman Barakat, a Fulbright scholar who completed her studies at Marquette and perennial speaker to our group. As a native of East Jerusalem, Riman also serves as a Director for East Jerusalem and Palestinian Relations for Jerusalem Season of Culture. Continue reading “Israel Reflections 2019–A Visit to Palestine”
I have always loved ruins. Ruins tell a story and bring an appreciation of the past. However, a forgotten aspect of ruins is the stories that surround them. The combination of beauty and history converge at the ruins of Masada. The utter beauty of the sight, whether it was the preserved ruins or the breathtaking views atop the rock cliff, brought me to a place of deep peace.
Let me provide a brief (Roman) summary of the siege of Masada. Following the destruction of the Jerusalem Temple, roughly in 70 BCE, a small band of Jewish zealots maintained a stronghold atop the rock cliffs. The Romans surrounded Masada setting up camps, which are still preserved today, and built a siege ramp to break into the fortress. When the Jewish rebels realized that they would not be able to hold off any longer, they killed their families, and since Judaism prohibits suicide, drew lots to determine the final man to commit suicide. Additionally, the men destroyed everything except the food supplies to show the Romans that they could have withheld, but decided to choose death over slavery.
History is written by the victors, and Flavius Josephus was the only historian to detail the account of the siege of Masada. As with any story, there might be exaggerations or altering of the details. But, over time, more questions have been raised about this version. Continue reading “Israel Reflections 2017–The Truth(?) of Masada”
For the start of our Israel trip this year, we first stopped for an overlook of Jerusalem. Here our tour guide, Asaf, gave us a very brief history of Israel—6,000 years in 6 minutes…well maybe it took 10 minutes. Following a fabulous dinner at Focaccia-Bar (I highly recommend), several students explored night life in Jerusalem during Shabbat. Stephen Bollom shared his experience with identities changed to protect the innocent (sort of).
Should a Bartender Be the Next Mediator for the Israeli-Palestinian Conflict?
Six hours after landing in Israel, I found myself amid an impromptu conflict resolution at Dublin Bar in Jerusalem. How could this be happening? I was only kidding when I told my friend we couldn’t leave Israel until we came to a two-state solution! Yet, there I sat, with my Jack and Diet half-full in front of me, as I pretended to not hear the commotion going on between him and two attractive Israeli women sitting next to him at the bar. How was he to know the ins-and-out of appropriate decorum considering the jet lag hadn’t even begun to wear off? How could it be our fault as Americans that the social constructs with which we are familiar would be considered offensive and insulting in Israel? Continue reading “Israel Reflections 2017–Day One–or, Should a Bartender Be the Next Mediator for the Israeli-Palestinian Conflict?”
It was a busy weekend for the Marquette University Law School Clients Skills Board, the organization focused on building client-focused practice skills.
Cassie Van Gompel and Zach Geren finished 3rd, and Megan Marqusee and David Karp finished 4th, at the ABA Regional Representation in Mediation Competition at Quinnipiac School of Law on Saturday, February 27th. Cassie and Zach had initially tied for 2nd place, missing the semi-final round in the tiebreaker by less than 4 points.
Closer to home, 1st-year students Cody Hallowell, Keegan Girodo, Kelsey Schanke, and Ben Lucarelli beat out ten other 1L and 2L teams to win the Marquette University Law School Intramural Negotiation Competition, also on Saturday, February 27th. Local attorneys, many of them MULS alums, came to Eckstein Hall to judge the competition, providing great feedback to all the teams working to enhance their negotiation abilities. Cody, Keegan, Kelsey, and Ben will represent Marquette in the ABA Regional Negotiation Competition next fall.
One of the most interactive and influential speakers during the trip was Moty Cristal, the CEO of Next Consulting. Having begun his career as one of Israel’s leading negotiators, Moty now conducts international negotiation trainings for the private sector. He made time to speak to us at the Rabin Center and his lesson was among the favorites of the trip. As our last speaker of the trip, I knew Moty would be a great wrap-up!
Student Sean A. McCarthy recalls his experience:
Moty Cristal has become one of the leading negotiation experts in Israel and my class was fortunate enough to meet with him in Tel Aviv. He had the class participate in an exercise that involved three people dividing up a large sum of money amongst each other. Each role (A, B, and C) was given a different amount of bargaining power and rules for reaching an agreement. If all three individuals were able to come to an agreement, they could split up $121 million. However, if A and B reached an agreement, they would split $110 million; if A and C reached an agreement, they would split $84 million; and if B and C reached an agreement, they would split $50 million.
As a member of the A group, I realized that I was going into the exercise with virtually all of the negotiating power. I was also fairly confident that a deal would be reached and that I would be a member of the deal. Ultimately, I was able to agree with B to split the $110 million with $26 million going to B and $92 million going to myself. During the debrief, I noticed that A was a party to all of the agreements reached, except for one. Many of the groups talked about how difficult it was to take the power away from A. In relation to international conflict, Moty explained that A groups could, in almost every situation, include the excluded party without losing anything themselves. This viewpoint—that while the pie can be expanded, ultimately some sharing is required for an agreement to be reached—was one of the most important lessons I learned on the trip.
Student Alex Evrard provides a different viewpoint on the experience:
During the exercise, I was a member of Nation C. Going into the negotiation with two much more powerful nations, I had little room to negotiate an agreement in which I was not the nation left out. Although my two opponents were inclusive and included me in an agreement, my fellow Nation C negotiators were not as fortunate; many of them reported back that they were left out of the final agreement. Moty’s lesson focused on how to negotiate while in a powerless situation. He told the group a story about the only time C was ever able to gain all of the money. In that situation, C was able to persuade his group members to agree to a coin flip. His lesson to the powerless negotiator was to negotiate as if there were no power. Instead of focusing on coalitions and the use of power, focus on the process of the agreement and working toward a solution that can benefit everyone. This was a wonderful exercise that left an impression on a good number of the students.
A highlight of our trip every year is the time we get to spend with Justice Aharon Barak and his wife Judge Elika Barak. Justice Barak is the former President of the Israeli Supreme Court, hailed as the father of Israel’s constitutional revolution and even cited by Justice Elena Kagan as one of her judicial heroes. Judge Barak was the former deputy chief of the Labor Court. It is a truly special evening.
Student Dejan Adzic recounts:
One of the most valuable and interesting experiences of the Israel 2015 trip was a group dinner at the home of former Justice Barak and his wife. The Barak’s were terrific hosts and their hospitality was remarkable and far exceeded my expectations. In addition to the great food, I was really surprised by how pleasant and approachable Justice Barak really is. He went above and beyond in his attempts to answer everybody’s questions and to give each student an opportunity to engage him in a conversation. He spoke tirelessly for nearly two hours with forty students asking thought provoking questions about Israel’s judicial system, the Constitution, labor and immigration issues, as well as the unavoidable security concerns and the two state solution. Justice Barak even found time to speak to the guests about the fruits in his garden, letting students take mandarins as edible souvenirs from the memorable dinner.
One of the most interesting topics of discussion was Justice Barak’s discussion on the U.S. Constitution and the originalist interpretation of the document. Justice Barak criticized the originalist approach when applied to a rigid constitutional framework that makes amendments difficult to accomplish. He believes that an originalist approach coupled with a rigid constitutional framework hinders the concept of constitutionalism. Another issue that is prevalent in Israel, but overshadowed by more pressing security concerns, are immigration and employment law issues that Israel faces. Israel has approximately 50,000 illegal immigrants working within its borders. These immigrants could easily be nationalized because most of them have been living in Israel for many years and their nationalization would benefit the country and eliminate the immigration problem. However, largely due to more pressing security concerns and other political issues in the Middle East, this employment and immigration problems are usually not at the focal point of Israeli politics. As Justice Barak noted, “It’s a tough neighborhood.”
Under the heading of hard bargaining tactics gone bad (and bad lawyer advice), we can now add this story. When a group of eight faculty members at the General Theological Seminary in Manhattan decided to stop working in order to protest their newly hired dean and president, Rev. Kurt H. Dunkle, all purgatory broke loose. Under advice of their counsel, the faculty wrote a rather strongly worded letter outlining their demands regarding the dean. (See the nasty details of the dean’s behavior here.)
Unimpressed with the tone of the letter, the Board of Trustees for the Seminary considered the letter, instead of the opening bid that the faculty intended, as a mass resignation. They dismissed the eight faculty members (leaving the students at the Seminary with only two instructors.) In this case, the eight faculty members’ hard bargaining tactic to have their foul-mouthed, micromanaging (in their descriptions) dean dismissed ended up focusing attention on their perceived “bad” behavior rather than that of their dean. Continue reading “Peace Be With You … And With You?”
In a new competition hosted by Cornell University this past fall, students tested out their skills at dispute resolution over the internet. We finally received the results in December so my apologies for the delay in singing our praises.
Students could choose to play the role of the plaintiff, defendant or mediator in a mediation that was completely conducted via email. Judges then graded their performance using the transcript of the mediation. I encouraged students to participate as part of the ADR class and was delighted with the results. While we all learned more than we wanted to about technical glitches, I hope the experience was educational as well. And, impressively, Marquette students dominated the competition.
As mediators, we placed 1st (Jill Aufmuth) 4th (Jillian Dickson-Igl) and tied for 5th (TJ Wendel). As defendants, we placed 1st (Tea Norfolk), 3rd (Alexander Golubiewski), 4th (Heather Hough) and 5th (Marcus Hirsch). And, as plaintiffs, we tied for 1st (Ryan Session and Dillon Raunio), placed 2nd (Casey Shorts and Frederick Hostetler), 3rd (Kelsey Burazin and Kyle Silver), 4th (Paul Gunderson and Ryan Ybarra), and 5th (Adam Gilmore and Antwayne Robinson). Another way to measure how well we did is that out of the 17 teams that placed, 12 of those teams were from Marquette. A very impressive record!
My congratulations to all the students that placed and appreciation to all those ADR students who participated. Well done.
There is no way the legal system – or anyone else — can undo the terrible wounds left on people who have had a loved one murdered. But can the system or those involved in different aspects of it help survivors of a murder victim go forward in leading their lives?
That was the underlying question at the remarkable and emotionally intense 2013 Restorative Justice Conference held last week at Marquette Law School’s Eckstein Hall. “The Death Penalty Versus Life Without Parole: Comparing the Healing Impact on Victims’ Families and the Community” brought together about 200 people from Wisconsin and much of the country to examine the post-murder lives of family members.
But among the many speakers, six stood out – because, as survivors of victims, they personally had gone through the grieving and dealt with the legal system and so many other problems. Three from Texas, two from Minnesota, and one from the Milwaukee area told their searing stories in a pair of panel discussions on Friday morning, the second day of the conference. Continue reading “Restorative Justice Conference: “Grief Is Inevitable; Misery Is Optional””
I have the privilege this week of serving as the keynote speaker at the annual Irish Mediator’s Institute conference in Dublin, Ireland. I will talk to this professional mediation organization about the incorporation of restorative justice principles into high emotional conflicts. In this time of family, community, political, national, and international conflict and discord, the principles of restorative justice that call all of us to truly listen to those with whom we disagree, so that we can better understand the deep harm we are inflicting by our name-calling and demonizing others, can help us to recognize our shared humanity and a path to building peaceful relationships.
I will have no shortage of examples of the harm caused by our angry divisions. Whether I talk about the American presidential race, the continuing conflicts in Northern Ireland, or the harm caused by the BBC’s alleged cover-up of sexual abuse claims against a popular children’s television star, the harm has rippled out to affect thousands of people. From the family level to international relations, we see much abusive and threatening language being used instead of people sitting down and respectfully listening to each other’s perspectives and concerns. So many of us speak and act in anger without thinking about the harm that we can cause others by our actions. Restorative justice calls us to reflect about who is being harmed and to identify the nature of that harm and then to work on bringing healing to the people who have been affected.
At the Law School, my students and I have been a part of victim/offender dialogue sessions in which murderers and rapists sit down with their victims (or family members of their victims) to have exceedingly difficult conversations. These meetings always occur because a victim has made a request for that meeting. What we routinely experience is that even with people who have suffered the deepest harm, victims find some peace in having these very difficult conversations. Offenders can answer questions, express their deep remorse, and acknowledge (often for the first time) the incredibly profound harm they have caused. Victims (or survivors as many like to be called) are able to give voice to the devastation they have suffered, get answers to questions that were never addressed in the judicial system, and find some peace in the offender’s apology. Offenders routinely report that they believe answering the victims’ questions is the best thing they have ever done for someone else.
I have seen restorative justice work in almost every setting where this is conflict. The processes do not “solve” every problem, but it reminds the participants that we are all part of a human family. What we do and say matters and can cause harm or bring great joy to others. The way out of our pain and anger is not to lash out but to listen to each other “with out hearts as well as our heads.”
It will be a wonderful experience to work with the Irish mediators and to explore with them how they can incorporate restorative justice into their work.