|Research/Original Thought Papers
for Negotiation & ADR Class
If you select to write a paper as the major factor for your grade in this course. This handout describes the paper and gives some ideas.
The paper is described as a research /original thought paper. It should be 10-15 pages in length. A 10-15 page paper (double spaced) is usually considered to be about 3,000-4,000 words. The paper topics might varying greatly. You might do research on a particular ADR topic which has been previously written about. You might summarize the literature or take existing ideas about ADR to new levels. You might interview ADR practioners about some ADR topic. You might write an original thought paper (generally making a proposal about ADR).
The paper should have a one-page "executive summary" summarizing your main conclusions, proposals, or findings, and the basis for those conclusions, proposals, or findings. (This does not have to be included as part of your word count).
Here is a partial list of some possible topics:
Advocacy in mediation
(most mediation literature is about how to be a mediator). How can a client or a lawyer best advocate for their side in mediation?
A variety of "ADR in ..." papers.
ADR in Health Care.
ADR in education.
Gender differences in negotiation.
Cross cultural differences in negotiation / mediation.
Negotiation styles in local culture in Hawaii.
Power imbalances in mediation
(Some people argue abused women should not mediate their divorces)
Confidentiality in mediation.
Limits of evidence rule 408 (prohibiting evidence of settlement discussions in later trials).
Enforceability of mediation agreements.
Is there really a litigation explosion?
What types of cases should not be mediated?
Are win-win solutions really possible in the real world?
Embedded ADR clauses in consumer contracts
(If you do business with a company, you give up your right to sue. You must arbitrate).
Tax consequence of settlement.
Evaluative mediation techniques.
Proposal: Special ADR fee for lawyers
Do lawyer resist early settlements because they will not be able to bill as many hours? Should their be some type of non-hourly fee that would encourage lawyers to seek an early settlement?
Proposal: Open settlements
Settlement are confidential. Should court settlements be "open" so that anyone can see the range terms and amounts? Would making the terms of settlements public encourage other settlements of similar cases because parties would know what the range of values are for similar cases?
Proposal: Multi-level discovery
Effective competitive negotiation tactics.
Criteria for evaluating mediators.
Should mediators be certified?
This is a new, dispute prevention technique in which parties to a contract meet in a retreat setting to build relationships and open lines of communication before any disputes arise. Frequently used in construction contracts.
ADR web sites.
Review of research on persuasion in negotiation. (e.g., effectiveness of opening offers, etc.)
Using technology for negotiation and dispute resolution (using e-mail, fax, video conferencing, etc.)
Post-negotiation (or post-arbitration) mediations.
Once the parties have reached a negotiated settlement (or an arbitrator has issued an award), the parties might agree to further mediation the conflict. If both parties prefer the newly mediated settlement better than the negotiated agreement of the arbitration award, the newly mediated settlement replaces the earlier negotiated settlement or arbitration award. The mediator gets paid a percentage of the increase in benefits that each party receives.
Creativity in Negotiations
What creative techniques are used to reach negotiated or mediated solutions. Any differences in cross‑cultural disputes?
Varieties of arbitration
(Binding, non-binding, high-low)
- Review of when arbitration awards can be vacated.
- Review of the arbitration rules of Japan or some other asian country.
- Comparison of the arbitration rules of the U.S. and Japan (or other asian countries).
For a quick view of short articles about recent developments in ADR, see the publication called Alternatives to the High Cost of Litigation. In Westlaw, the database is called ALTHCL. I sometimes search this database by using any of the following words in a title search - negotiat!, mediat!, ADR, arbitrat!.