We are so excited to announce that Rachel A. Viscomi ’01 has been named as the Director of the Harvard Negotiation and Mediation Clinical Program (HNMCP) and appointed Assistant Clinical Professor of Law at Harvard Law School.
“I am honored to join such a distinguished and inspiring faculty and grateful to work alongside such talented staff, students, and colleagues,” Viscomi said. “It is a joy to help our students become creative, thoughtful lawyers as they learn to seek the wisdom and transformation that conflict offers. As we enter the next phase of our work, I am deeply committed to helping our students learn how to listen for and raise up the stories of those who have not always found a seat at the table.”
“Rachel Viscomi has a deep understanding of both the theory and practice of negotiation and conflict-resolution, which she teaches expertly in the classroom and the clinic,” said John Manning, the Morgan and Helen Chu Dean of Harvard Law School. “I am delighted that Professor Viscomi is joining our faculty to teach negotiation to our students and to enhance learning about this important field.”
Viscomi, who holds an M.A. in Italian from Middlebury College and a B.A. summa cum laude in Italian Literature from Columbia University, came to HNMCP in 2013 as its Assistant Director and a Clinical Instructor, as well as a Lecturer in Law at Harvard Law School. She supervises clinical projects related to dispute systems design, conflict assessment, facilitated dialogue, strategic negotiation advice, and curriculum design. She also teaches several advanced negotiation courses, including Dispute Systems Design, The Lawyer as Facilitator, and Advanced Negotiation: Multiparty Negotiation, Group Decision Making and Teams. Viscomi regularly presents on topics related to facilitation, mediation, dispute systems design, and negotiation. In recent years, she has worked to expand opportunities for facilitation and dialogue as part of HNMCP’s growing political dialogue efforts. She has also worked closely with the Harvard Mediation Program, and with the Harvard Law School Negotiators and the Harvard Negotiation Law Review as they work to expand opportunities on campus for students interested in dispute resolution.
Prior to joining HLS, Viscomi was a principal in the Corporate Education Practice of Vantage Partners, a Boston-based consulting firm. She has taught negotiation and conflict resolution for clients across the globe, including as part of UMass Boston’s Emerging Leaders Program, NALEO’s National Summit on the State of Latino Education, Amsterdam’s ADR Institute, and at The Citadel, The Military College of South Carolina. Before joining Vantage, Viscomi was a civil litigator with the law firm of Bingham McCutchen, LLP, where she worked on First Amendment, contract, employment, prisoners’ rights, and construction-related issues.
Our Spring semester clinical projects allowed us to think about dispute systems design in a variety of contexts and settings and to tailor recommendations to meet the needs of a wide variety of stakeholders—from an environmental watchdog to drug court teams; from schools in the midst of entrenched conflict to student, staff, and faculty on an American college campus.
Extractive Industries Transparency Initiative
The Extractive Industries Transparency Initiative (EITI) is a global standard to promote the open and accountable management of oil, gas and mineral resources. It seeks to address the key governance issues of the oil, gas and mining sectors. HNMCP provided EITI with research support and recommendations for its current grievance mechanism review.
New Hampshire Adult Drug Treatment Court
The New Hampshire Adult Drug Treatment Court (NHADTC) requires a team of both court and non-court professionals to manage client referrals, client monitoring, and drug court policies and procedures. The NHADTC engaged HNMCP to identify common conflicts among drug court teams and give the Drug Court Coordinator and the ADR Coordinator advice on how to better manage such conflicts.
Seeds of Peace is a non-profit organization that works with young people and educators to inspire and cultivate new generations of global leaders in communities divided by conflict. Seeds engaged HNMCP to conduct stakeholder assessments to explore the ways that the Israeli-Palestinian conflict, and conflict in general, show up in schools in the region and how Seeds of Peace might help students and educators engage conflict more effectively.
Wellesley College is a one the nation’s premier liberal arts colleges and widely acknowledged as the leading college for women. Wellesley engaged HNMCP to offer recommendations for the redesign of informal grievance resolution processes on their campus, for faculty, staff and students.
The Harvard Negotiation & Mediation Clinical Program (HNMCP) at Harvard Law School is pleased to announce the launch of a new podcast series called Thanks for Listening.
We are pleased to announce that the Harvard Negotiation & Mediation Clinical Program has been awarded a grant to fund a new podcast series called Thanks for Listening, which will launch in November 2018.
This podcast will spotlight efforts to bridge the political divide in the U.S. through dialogue and collaborative processes, profiling the important and often courageous work of individuals and organizations who are helping citizens engage with one another on challenging topics. Episodes will dive deep into such issues as: managing difficult family dynamics and relationships affected by partisan differences; bridging the divides in Congress, the media, and in our social media spaces; training youth to move through conflict and toward civic responsibility; embracing dialogue in the face of extremism; engaging with others on highly emotional issues; and on working to restore divided communities. We hope that through the everyday examples of ordinary and extraordinary people all over the country, listeners will find optimism that we can—and are—moving beyond partisan divides, as well as inspiration to become part of the solution.
Keep your eyes out on our website, Facebook page, and Twitter for a link!
Thanks for Listening is made possible by the generous funding of the American Arbitration Association International Centre for Dispute Resolution Foundation.
What do you get when you combine a diverse group of people, trained student facilitators, and a willingness to engage around polarizing civic issues over the course of a semester? HNMCP mixed those ingredients and came up with Let’s Disagree, a dialogue series offered as part of HNMCP’s Political Dialogue Initiative.
Let’s Disagree incorporated key features of earlier projects of the Political Dialogue Initiative—small group dialogue, polarizing issues, student facilitators—and added a new element: sustained group dialogue over time. Rather than a one-time event, we wanted to explore what benefits might come from a format that permitted the same participants to get to know one another through multiple dialogue sessions. We also wanted to attract participants with a broad range of political leanings and life experiences to make for a richer mix of perspectives. Finally, as the name suggests, we wanted to offer participants an opportunity to explore whether it is possible to disagree with respect and curiosity, and without being hopelessly divided (spoiler alert: we believe it is!).
Through an application process that asked potential participants to describe their background and political views, as well as why they wanted to join Let’s Disagree, we accepted nearly forty participants—enough people for five small groups, each with its own facilitator. The groups included students from several Harvard graduate programs, citizens from the local Cambridge community and suburbs of Boston, and representatives of four different continents—a diverse pool indeed (though, to be transparent, there were fewer applicants who self-identified as strongly right-leaning). Participants were asked to commit to attend all three sessions of Let’s Disagree, and to bring to each session a willingness to engage with respect and curiosity in a civil discussion of challenging issues.
The sessions—held over three Monday evenings in March and April of 2018 —were facilitated by HLS students Jonathan Rosenbluth ’18, Emily Joung ’18, Nate Szyman ’18, Leanne Gaffney ’15, and HNMCP Clinical Fellow Adriel Borshansky HDS ’15, many of whom have taken The Lawyer as Facilitator workshop. Jonathan Rosenbluth played a key role in developing the dialogue topics and background resources for facilitators and participants. All facilitators had the opportunity to hone their facilitation skills by leading a group through three difficult dialogues, and customizing the dialogue format for their particular group, and for each session. Session themes were controversial and topical: the #MeToo movement and fair process; power and privilege; and the intersection of free speech, safe spaces, and trigger warnings on college campuses. “Over the course of the dialogues,” noted Rosenbluth, “the participants seemed increasingly comfortable in voicing their disagreement with each other. One potential explanation for this trend is that participants were initially concerned with how others might react to disagreement, and as they realized that diversity of opinion would be welcomed—not shunned—they were more open in sharing their views. Personally, this highlighted the importance of encouraging the sharing of opinions that differ from our own and the chilling effect that reprisal can have on speech.”
Feedback from facilitators and participants is that the series was both successful and worth expanding. Facilitators felt their groups were better able to engage through disagreement over time. Participants appreciated the format, the range of backgrounds, and the challenging issues. And, we see room for improvement. Most participants agreed that they would have appreciated an even greater diversity of views . . . and more disagreement! This is perhaps the most encouraging feedback we could have received. And, it echoes a common theme running through the applications—people are frustrated by the growing partisan divide and are hungry for opportunities to engage constructively around difficult issues. So are we. Happily, Let’s Disagree 2.0 is already underway in our fall semester course The Lawyer as Facilitator!
This past year brought a flurry of activity and excitement for members of Harvard Law School Negotiators, led by Brady Bender ’18, Yoonie Han ’18, Brayden Koslowsky ’19, Michael Kucharski ’19, and Jacob Stoller ’18. HLS Negotiators, a student practice organization, provides students with opportunities to refine their skills in alternative dispute resolution. By partnering with organizations confronting conflict challenges and learning from successful practitioners, HLS Negotiators makes dispute resolution work more accessible to students both during and after law school.
Throughout the year, organization members worked with real-world clients to provide advice and train others in negotiation and ADR skills. A team of students provided research and consultation for the New Hampshire Judicial Branch’s Office of Mediation and Arbitration, “[This project] gave a unique chance to me, as a young practitioner, to contribute to the future use of mediation in an entire state,” noted Alexey Bardin LLM ’18, one of the project’s team members. Another team partnered with Harvard Divinity School students to write a simulation around negotiation in religious contexts. Participants in the simulation took on roles in a particular context: a hospital chaplain communicating with and providing comfort to a patient’s family members who disagree about the right way forward. Lastly, a group of ten students focused on negotiation and conflict management skills for youth. Their work served two clients: 1) one team delivered a training to high school students at Community Charter School of Cambridge (and included in their training a self-written simulation related to active listening and restorative justice practices); and 2) a second team delivered a curriculum to Bethany Birches Camp, to help them train their staff in managing conflict amongst their young campers.
Talks by ADR practitioners and experts brought home the rigors and opportunities of a career in ADR.. In the spring, HLS Negotiators brought sports agent and expert negotiator Ron Shapiro ’67 to campus. “It was an incredible privilege to host Ron Shapiro—a giant in the field of sports negotiations and negotiation education,” said Brayden Koslowsky ’19 of the event. “In his work, writing, and outlook on life, [Shapiro] provides students, and especially Negotiators members, with an outstanding example of how to negotiate, build relationships, and engage a challenging, meaningful career.” This fall, visiting professor Jennifer Reynolds ’07 engaged organization members in critiquing, and responding to critiques of, ADR with a dinner workshop entitled “Challenging and Improving ADR Norms.” Matt Waldman, founding Director of the Center for Empathy in International Affairs, shared lessons from his career negotiating in the context of high-stakes international conflicts at a fall lunch talk. Stacie Smith, Senior Mediator and Director of Workable Peace at the Consensus Building Institute, taught members about how to manage multi-party mediations and shared her experience in the trenches of large group dispute resolution.
In all its work, HLS Negotiators acts on a mission to expand ADR opportunities on campus and put into practice the interest-based dispute resolution skills taught at HLS. In doing so, the organization helps prepare a new generation of lawyers with the collaborative mindsets and the skills to resolve disputes outside the courtroom.
Last fall I returned to my home country of Brazil to speak at the XXIII Brazilian Bar Association National Conference in São Paulo about my experience as Outreach & Case Coordinator at the Harvard Mediation Program.
Over 20,000 people attended, making it the largest gathering of its kind in the legal field according to the organizers. During three days, a variety of themes were debated. Appropriate (or Alternative) dispute resolution (ADR), and more specifically mediation, was highlighted given the new Brazilian Mediation Law passed in 2015 (L 13.140/15), which has been gaining momentum in the country. I was honored to share the podium with colleagues who have been doing inspiring work in Brazil and abroad.
Resolving conflict through mediation and other forms of ADR comes as an absolute necessity in a country where only 27% of lawsuits were resolved by the first instances of the judiciary branch in 2016, contributing to a tsunami equivalent to 79.7 million pending cases on all courts of the country as backlog. In 2016 alone, 29 million new lawsuits were filed in the courts[1]. Marco Aurélio Buzzi, one of the speakers in the conference and judge in one of the highest courts in Brazil (the Superior Tribunal de Justiça), said, “I am not saying that the system has failed, but we must act to prevent it. I’m sure that in our experience, the only and real alternative is mediation and conciliation, there is no going back.”
Nevertheless, very much like the United States thirty years ago, Brazil is not entirely ‘sold’ on the idea of mediation. Modern mediation was not easily or readily accepted in the U.S. and many would still claim it has a secondary or tertiary place, behind conventional litigation and arbitration[2]. Very much like the U.S., Brazil is deeply polarized, socially and politically. The two countries also share adversarial cultures, with a preponderance of litigation in dispute resolution. Brazilian ‘litigation culture’ or a ‘culture of the verdict’ (as some like to call it) unfortunately does not typically favor amicable, forward-looking, creative, consensual outcomes.
When it comes to resolving disputes outside of the formal legal system, it is safe to say that the U.S. has now one of the world’s most advanced and successful ADR systems. We should also acknowledge the success of the work done by Harvard University and many other institutions of higher education in creating the theory transforming the field of ADR across the world. And we must mention and honor Professor Frank Sander, widely known as one of the fathers of the field of ADR who just recently passed away, for daring to think differently and passing on his wisdom to so many others.
In Brazil, where I pursued a portion of my legal education, mediation was rarely addressed in any university curriculum at the time. Gladly, this panorama is changing. I came into more in-depth contact with ADR thanks in large part to my U.S. professor, friend, and mentor Carrie Menkel-Meadow, who to this day is making some of the most significant contributions to the field. Introducing ADR in formal legal education all over Brazil is an essential step to a shift in the legal culture.
In large part, law practitioners participating in the conference seemed enthusiastic about the prospects of mediation in the country, but in their talks speakers also spent time trying to allay skepticism or fear on the part of some lawyers that mediation could be a conflict of interest that may undercut their litigation business. This is not an uncommon reaction. Recall, for example, the famous episode in 2011 when the Italian Bar Association called on its members to strike in opposition to a mandatory mediation law. Drawing on themes from the conference, here are some things to consider as we work to shift any country’s legal culture towards greater acceptance of ADR:
It takes time to change a culture, but when looking at the Brazilian court backlog statistics, it is clear that there isn’t time to waste. Together, the citizens, lawyers, judges, public officers, academia and business community of Brazil must face this backlog as a collective problem that requires a collective solution in handling conflict more efficiently.
Seeing these issues in Brazil, I was grateful to share with the conference participants my experience with the Harvard Mediation Program. We have mediated 186 cases from July 2016 to June 2017 both inside and outside of the courts. The program was established at Harvard Law School in 1981 with both an educational and a service mission. We strive to provide students and community members with comprehensive and ongoing training in the theory and skills needed for effective mediation, opportunities to apply those skills in real-life mediations, and to provide a service to the courts and the community. Sharing this experience in my home country and participating in the debate made it even more meaningful to me. I look forward to contributing to the conversation even further as Brazil moves ahead in trying to find its own unique path in building a culture of mediation.
Ana Carolina Riella is the Outreach and Case Coordinator for the Harvard Mediation Program (HMP). After completing her training with HMP in 2010, Ana mediated small claims cases in the Cambridge and Malden District Courts. In 2013 she was selected for the very first HMP Training Corp, a seven-member team charged with teaching new trainees in the program’s facilitative mediation model. Beyond HMP Ana worked at the Boston Law Collaborative with David Hoffman, a Harvard Law School Lecturer on Law. She also held the position of Mediation Case Coordinator at the Brazilian Immigrant Center in Boston. A native of Brazil, Ana mediated cases in a compensation program for the beneficiaries of the 2009 Air France Flight 447 plane crash. Ana’s legal background also includes a position as International Associate at Simpson, Thacher and Bartlett LLP in New York, in-house counsel at Renault SAS in Paris, France, and as intern at the International Court of Arbitration at the International Chamber of Commerce (ICC) in Paris. She received her LL.M. degree from Georgetown University Law Center and from Université de Paris II – Panthéon-Assas (Paris, France), after earning her J.D. from Pontificia Universidad Católica, in Brazil.
Magnetic Fridge Poetry by Steve Johnson via Flickr
For this year’s annual art contest (the fifth of its kind), HNMCP invited original works of poetry that engaged themes of conflict, polarization, and dialogue.
The clinic believes that expressive arts have a unique ability to deepen practitioners’ appreciation for and understanding of the complex world of conflict resolution and management. Moreover, the practice of creative expression is itself a form of peacebuilding. It involves activating the imagination, perspective-taking, and human agency in creating and working towards the world we want, not only the world that is.
The theme for poets to respond to was: “us, them, and everything in between”. Given the clinic’s commitment to genuine engagement and dialogue amidst political polarization, this theme was a way to invite voices into the conversation about dialogue.
Of the thirty-five varied and inspiring entries, three were selected as winners of the contest. These poems will be printed and featured on the walls of the HNMCP suite. You can read them here:
1st Place: Un-Alone in the Woods by Elizabeth Frank
2nd Place: Us? Them by Howard dePass
3rd Place: Us by Lupin Thurrott
During their last week of class, students in the Spring 2018 Negotiation Workshop had the opportunity to learn from one of the truly influential negotiators of our time: Ambassador Wendy Sherman. It was Sherman’s second time in three years visiting the Negotiation Workshop, and her talk this time around was equally packed with honesty, storytelling, and wisdom.
“Many times in life you’ll find you have to rise to the occasion,” Sherman advised in her opening remarks. In 2011, then-Secretary of State Hillary Clinton appointed her to be the Under Secretary of State for Political Affairs, putting Sherman at the helm of political operations all over the world. In that role and in her preceding roles in government, Sherman has put negotiation theory to the test: she was instrumental in negotiations related to North Korea’s nuclear weapon and ballistic missile programs under the Clinton Administration and was the lead negotiator for the Iran nuclear deal under the Obama Administration. In her words, conveying some envy of the students’ opportunity to practice negotiation in a workshop setting, she said: “I had to learn by doing.”
Ambassador Sherman’s path to international negotiations was a circuitous one: she worked for many years as a social worker and community organizer before landing in politics. Her advice to students, therefore, was: don’t have a five-year plan. “Take opportunities and get a strong core skill set,” she said, “it’s the skill set at the core that you need for whatever you do.”
Throughout her talk, Sherman retraced her steps in social work, community organizing, and international negotiations in order to tease out some of the core skills that have served her. Her experiences illustrated countless key lessons that apply to negotiation more broadly.
She emphasized the importance of slow, deliberate relationship-building with one’s counterparts in a negotiation process. In the first two years of talks 
with Iranian officials, she says that the group of negotiators got nothing done substantively. Nonetheless, they got to know each other and establish common ground. “No time is wasted in a negotiation,” she said, “Sometimes you have to hit a roadblock before you can break through.” She credited Kerry’s patience and willingness to have private conversations with their counterparts early as what brought about the formal Joint Comprehensive Plan of Action (otherwise known as the “Iran nuclear deal”).
Sherman highlighted the importance of sequencing. Sometimes, she suggested, the most contentious issues in a negotiation need to be discussed upfront in order to unlock the possibility of a deal. But in other cases, as in the Iran negotiations, she suggested that leaving contentious issues until the end of a negotiation can be strategic: “We left the U.N. resolution as the last substantive issue to be agreed upon because we figured by then everyone would want to get to yes, and they did.”
The Ambassador also emphasized the importance of active listening, perspective-taking and understanding the other side’s story. In the Iran negotiations, this meant learning about Iranians’ perspectives on history and views about the U.S. And moreover, she suggested, it meant understanding and appreciating how acute the stakes were for the Iranian negotiators.
Sherman discussed the need to meet a diverse array of interests and the importance of creativity and nuance in accomplishing this goal. In the case of the Iran deal, everyone wanted to ensure that Iran wouldn’t get nuclear weapons, but each member had other interests as well. In some instances, these interests were in tension with one other. When it came to ending sanctions on Iran, Iranian negotiators wanted to use the word “terminate” while Sherman and her team were only willing to “suspend” sanctions. In the end, they agreed to the language of “lifting” sanctions because lifting can mean both terminating and suspending. That level of granularity was critical to accounting for all the interests at the table.
Ambassador Sherman stressed the necessity of thorough behind-the-table preparation. Her team, comprised of hundreds of staff members in the U.S. government, spent hours preparing and strategizing about high-level meetings. She would ask her team to write up an agreement, including extremely technical details, and have the entire team (nuclear physicist or not) go over the imagined agreement for two days, line by line. The rationale for this painstaking process? “First, I wanted to create a group norm where everyone would hear everything,” she explained. “And second, if something in the agreement didn’t make sense to most of us in the room, it had to be explained until it did”. She and her team studied what she called the “right and left” margins meticulously on every possible issue, so that they knew exactly what conditions they were willing to accept.
Ambassador Sherman also underscored the relevance of courage in the absence of trust. Throughout the U.S.-Iran negotiations, she said, Iranian officials would ask her how they could be sure of her intentions to agree or to adhere to an agreement. Her response: “You can’t be sure any more than I can be sure about you. All we have going for us is to strike the best and most durable deal we can.”
Finally, Ambassador Sherman asserted that it is important to know who you are and be who you are. “To some extent,” she said, “we don’t have a choice in what we bring to the negotiating table.” Whether it’s one’s gender, race, religion, emotional state, or professional history, Sherman argued, authenticity is both inevitable and effective. She spoke about finding “the most bizarre common ground” with the Iranian negotiators by explaining to them that she too, having grown up in a religiously Jewish community in Baltimore, was accustomed to not shaking hands with men. (She even shared that those same negotiators later gifted her Persian rugs). And drawing on a story from her upcoming book, Not for the Faint of Heart: Lessons in Courage, Power, and Persistence, she recalled the role that her gender and even, at one particularly tense moment in negotiations, her tears, played in the process with Iranian officials.
Turning to current events, Sherman was not shy about addressing the immense challenges and sensitivities that President Trump faces with North Korea, Syria, and Iran. Her sobering tone and skepticism about the president’s preparedness conveyed deep concern, even as she affirmed the need to reach out and attempt diplomacy. Asked about whether we can consider a “rational actor” to be involved in the U.S.–North Korea negotiations, Sherman first quipped, “are you talking about our leader or theirs?” before going on to say poignantly, “I tend to approach people as rational within their frame, even if that frame might not be mine.”
Ambassador Wendy Sherman’s visit to the Spring Negotiation Workshop is the latest installment in an annual feature of the course in which a prominent real-life negotiator speaks to enrolled students about their professional negotiation experience in an area of practice. Past speakers have included Sarah Hurwitz, Bob Barnett, Ron Shapiro, Rose Gottemoeller, Grande Lum, and Clifford Sloan. The Negotiation Workshop is offered each January term and each spring semester, and combines theory and practice to improve students’ understanding of negotiation and their skills as negotiators.
A team of HLS Negotiators students carried out a semester-long project with Zikaron BaSalon (Hebrew for “memories in the living room”). Zikaron BaSalon is an initiative seeking to offer intimate and engaging platforms for people to commemorate the Holocaust around the world. The students’ primary objective for the project was to understand and provide feedback on Zikaron BaSalon’s existing approach to facilitating dialogue. The team had a particular eye towards what might work as the initiative seeks to expand more in the U.S. context.
As part of their work, the Negotiators team hosted and facilitated a real Zikaron BaSalon event, open to the public, on Harvard Law School’s campus. The event consisted of three parts: a video-recorded testimony of a Holocaust survivor, the sharing of personal stories and sentiments, and finally a facilitated discussion, which gave participants a space to reflect on the memory of the Holocaust. Afterwards, participants had an opportunity to reflect on the experience and give in-depth feedback about what worked well for them and what they would have liked to see changed. Neha Singh ’19 and Max Bevilaqua (Tufts Fletcher School, ’18) facilitated the discussion and teammates Harout Ekmanian LLM ’18 and Tamsin Parzen ’20 participated along with a group of fifteen others. One theme of the discussion was: to what extent should Holocaust commemoration occur alongside commemoration of other genocides? The vast range of personal backgrounds, perspectives, and experiences in the group made for a rich discussion and raised for the students some core, and even universal, questions about facilitation.
Read a blog entry from facilitator Neha Singh about her experience.
People care. People care about themselves. People care about others. People care about ideas and people care about politics. People care about their community, their country, and the world. Because we care, sometimes we work together to tackle challenges. And because we care, sometimes our differences of opinion sow division and animosity.
This past spring, the Harvard Negotiation and Mediation Clinical Program ran a series of facilitated dialogues called Let’s Disagree. These dialogues were designed to explore deep differences of opinion and experience through facilitated conversations about polarizing topics. The goal was to provide a forum through which community members could disagree passionately about matters of vital civic importance, yet seek to understand, rather than to persuade, others in the group.
I was involved in planning Let’s Disagree and served as one of five facilitators in the program. I believe that by seeking to understand the ideas, values, and experiences of someone that holds a different opinion than myself, I can help combat the trend towards division. Seeking understanding will facilitate the inclusion of more voices and lead to creative solutions to address issues in personal, professional, communal, and political contexts.
Just think for a moment about the Thanksgiving table, and you know that seeking understanding is a difficult task. More than ever, it seems as though differences of opinion are dividing, not uniting, us; the average Republican and Democrat have few or no friends in the other party.[1] People are increasingly able, indeed encouraged, to interact with viewpoints that reinforce their own opinions, to the exclusion of different perspectives. Social media usage reinforces this trend. And not only do Republicans and Democrats have increasingly negative opinions about the other party generally speaking, but most Republicans and Democrats have negative opinions of members of the opposing party.[2]
Consequently, political polarization is on the rise. People seem to be losing the ability, and desire, to listen to others with different views without feeling anger and hostility. One Let’s Disagree participant explained that when she heard an opposing view, her heart began to race and she no longer cared to listen. She did not want to hear the rationale behind the opposing view; she wanted to argue against it. The feeling of wanting to argue and advocate is familiar to many people. It certainly is familiar to me. So how do we resist the urge to abandon listening? How, in the face of triggering viewpoints, do we continue to engage thoughtfully?
On a personal level, my experiences in the Negotiation Workshop, the Harvard Mediation Program, and The Lawyer as Facilitator course, have trained me to seek understanding, resist my impulse to be overly judgmental, and to hold in abeyance my fight or flight reaction when I feel triggered. I have learned to engage in active listening, probe for interests, walk down the Ladder of Inference, remain agnostic about intent, and recognize and label my emotions. As those who know me well would tell you, using these skills effectively remains a work in progress.
At HNMCP we are learning more about, and developing strategies for, having effective dialogue about polarizing topics. Let’s Disagree is one example of this effort. We hope to utilize our learning to develop communities in which differences of opinion and experience no longer sow division and animosity, but enable us to effectively tackle our most pressing challenges.
Looking back at almost three years at Harvard Law School, I am extremely grateful to have learned from and worked with the kind, compassionate, thoughtful, sharp, and enormously fun students, staff, and faculty that make up HNMCP. It has been such a privilege to be a part of this inspiring community.
HNMCP: What originally attracted you to the Negotiation Workshop, and then to the Clinic?
Elaine Lin Hering: Every law student I spoke with as a 1L had raved about the Negotiation Workshop as the “one class you have to take while at HLS,” so I was thrilled to get off the waitlist and into the class. For me, the Workshop was full of personal “ah ha’s” around communication—Wait, there is actually a way you can talk about these things? You can express a difference of opinion constructively? Anger is okay? These were all revelations to me at the time and introduced me to new possibilities around communication and managing conflict. I wanted to learn as much as I could, and have as many opportunities for practical application and learning, so I signed up for the Negotiation & Mediation Clinic.
After that, I basically did everything ADR related that I could. I was part of two student practice organizations. I mediated in small claims court in Boston with the Harvard Mediation Program. As part of the Harvard Law School Negotiators (which is supervised by HNMCP), we formed a training corps, so my earliest experiences facilitating trainings were actually as a student. We did negotiation trainings for the Nantucket Firemen, NAACP and other community organizations. Those experiences helped develop my facilitation skills and also affirm that this was work I wanted to do.
HNMCP: Your HNMCP clinical project was with Tuesday’s Children, which organizes a youth summer camp designed to create a community and mutual support network of young people from around the world who are impacted by terrorist attacks. Part of the camp was designed to teach these adolescents negotiation, communication and conflict management skills. You and your partner Annie Levin ’10 overhauled and delivered the content for the modules on negotiation and conflict resolution, with particular attention to the emotional and social needs of the adolescent audience. What kinds of challenges did you face in this work? What surprised you? What sweet spots did this project hit for you?
ELH: This project was powerful for me because of the direct application to individual lives. The camp was about meaningful connection between people from diverse backgrounds, focused on constructive ways of moving forward from tragedy. It was humbling to be part of the work. The challenge was taking the content and approaches from law school, which could have been very theoretical, academic or removed, and making them resonate with teens. We learned the importance of humility. While we certainly had ideas to offer, the real work and insight came from the teenagers themselves, who were willing to be vulnerable and share their own stories and perspectives with each other.
HNMCP: What did you learn about yourself over the course of the project?
ELH: A key lesson for me from the camp was to get out of the way. As a facilitator, you’re creating a space for conversation, learning, and connection. But it is not, and cannot be, about you. It is a lesson that sticks with me to this day. How can this workshop, session, camp, meeting, or conversation be about the people here and the things that matter to them? That’s where we get engagement, movement and progress.
HNMCP: You were one of our earliest students to pursue a career in dispute resolution. What is it about the work that piques your interest?
ELH: I can’t imagine better work to be doing. It’s the opportunity to help people have difficult conversations, to get unstuck, to develop their own capacity, to do whatever it is they do—but even more effectively. Whether it’s creating life-saving drugs, running an investment bank, or building the latest tech platform, there are so many things others do that I could never (or really shouldn’t) do. But if we can help a team of researchers communicate more effectively with each other so they can find a cure for cancer? That is work well-worth doing.
HNMCP: What does a “typical” day look like for you?
ELH: A typical day is a lot of listening and trying to meet interests, to use negotiation-speak. Whether by email, phone, video or in person, I’m doing diagnostics to understand what’s going on, where the pain points are, and then figuring out how we might be able to help. I’m listening for tangible and intangible interests, and then developing options that might help meet those interests, to put it in 7 Elements language. Since we work globally, and I’m now based on the West Coast, the medium of communication varies but the stance is actually quite similar. What’s going on, and how might we be able to help?
HNMCP: What advice would you give our students today about pursuing a career in ADR?
ELH: Two thoughts.
First, notice where you’re already using your ADR skills in daily life. While ADR is a specific field, the skills are applicable in any context. Using these skills will help you hone them, gain practical experience, and ideally, positively impact your existing context. If you’re practicing law, you are negotiating. If you’re part of any group, there are stakeholders to manage. If you interact with other people, there’s inherently opportunity to manage conflict.
Second, create opportunities to try doing what you think it is you want to do and see what you learn. My time in Australia tested the hypothesis that this was work I wanted to do and that I might be effective in doing it. I had a strong BATNA of going back to the law firm. Test things out before making a jump, gather data, and refine what it is you think you might want to do be doing.
At the beginning of October, the HNMCP team and some of our students, facilitated a campus-wide conversation “Making Sense of the Kavanaugh Confirmation Process”. This, in addition to a separate group dialogue process we offered a week earlier, was a chance for students, staff, and faculty to engage in small group facilitated dialogue with voices on all sides of the issues.
Harvard Mediation Program Outreach Coordinator Ana Carolina Riella presented as part of the New Developments in Alternative Dispute Resolution panel, alongside professor André Ramos Tavares.
HNMCP Director Rachel Viscomi ’01 participated in The Harvard Law Brazilian Studies Association 2018 Legal Symposium, “The Law in the 21st Century”
last April. She was a speaker on the ”Transnational Conflicts” panel with Paolo Nasser, moderated by Luis Felipe de Sousa e Silva.
Just before the fall semester began in Cambridge, Rachel traveled to Israel to work with a number of NGOs. Rachel spent three days at the Hermon Field School as part of the Pathways Negotiation Summer Institute, helping Jewish and Arab English language educators learn to engage difficult conversations more effectively and enabling them to bring these skills to their classrooms. With the support of the US Embassy, Pathways works with students, educators, and organizers to explore constructive approaches to problem solving and interest-based negotiation, empowering participants to negotiate their daily issues, resolve conflict, and become positive role models in their schools, organizations, and communities.
Following her work with Pathways, Rachel taught a workshop on dispute systems design for mediators and academic professionals from the International Conflict Management Program of Haifa University and Haifa’s Mediation and Dialogue Center, Bet HaGeffen. The following day, Rachel spoke on the “Challenges and Complexities of Multiparty Negotiation” to a group of twenty professional mediators, which was co-organized with Gevim Mediation and Negotiations, a consultancy that works in the field. On her last day, Rachel travelled to the American Center in Jerusalem practical and taught a workshop on mediation concepts and techniques for a group of experienced mediators.
In April, Rachel Krol ’12 delivered a negotiation and communications workshop as part of the “Preparing Capable Owners of a Family Business” program for family business owners from Harvard Business School, MIT Sloan, and Babson at the Cambridge Institute for Family Enterprise. In September, she traveled to Los Angeles to co-deliver a series of negotiation training programs for the Legal Department at Netflix. This fall Rachel is co-teaching the Negotiations Seminar at Georgetown University Law Center with another HLS alum, Zoe Segal-Reichlin ’06, as well as with former HNMCP clinical instructors Chad Carr ’06 and Alonzo Emery ’10, and with HNMCP alumnae Leah Kang ’12 and Ariel Eckblad ’15.
HNMCP Clinical Instructor and Lecturer on Law Andrew Mamo ’14 has been one of the organizers of the campus-wide New Clinicians Workshop. The workshop brings together instructors with less than five years of experience from all of the clinics at Harvard Law School for discussions with panels of experienced clinicians and other experts. Sessions have addressed the challenges of supervising students, giving feedback, grading, classroom teaching, diversity and inclusion, and balancing obligations to clients and students.
Additionally, Andrew—together with Crisanne Hazen of the Harvard Law School Child Advocacy Program and Maritza Karmely of Suffolk University Law School—organized the orientation program for new clinical instructors at the New England Clinical Conference at Roger Williams University School of Law on October 12. Participants shared their goals as new clinical instructors and faculty, and discussed shared challenges and strategies for succeeding in clinical legal education.
HNMCP Clinical Instructor and Lecturer on Law Sara Budish ’13 helped organize a lunchtime panel titled “Emerging Technology and Dispute Resolution: What Does the Future Hold?” this spring, in conjunction with the Silicon Valley Arbitration & Mediation Center—Young Professionals group. The event was co-sponsored by HNMCP and Shearman. The panel addressed the rapid development of emerging technologies, which is largely outpacing traditional laws and regulations intended to provide order in our lives and commerce. Panelists discussed whether national courts or alternative dispute resolution (e.g. arbitration, mediation) will continue to provide a reliable and efficient method for dispute resolution; whether new approaches and forums for dispute resolution will develop in parallel; and how can technology, which is advancing at exponential rates of change, be governed by institutions that evolve, at best, at linear rates of change. The panel included two leading thinkers in the technology and dispute resolution: Joel Cutcher-Gershenfeld, Professor, Heller School for Social Policy and Management, Brandeis University and editor of the Negotiation Journal; and Ethan Katsh, Professor and Director at the National Center for Information Technology and Dispute Resolution at the University of Massachusetts. The panel was moderated by David Earnest, SVAMC-YP, Steering Committee Co-Chair | Shearman & Sterling LLP.
HNMCP Clinical Fellow Adriel Borshansky HDS ’15 presented at a new Harvard Law School initiative entitled, “Life in Law: Coaching for Success in Law”. This semester-long series of seminars was designed to help students learn skills for navigating emotional, social, and professional challenges in addition to skills of managing coursework. Borshansky delivered the last of eight seminars and gave students frameworks for thinking about and space to workshop difficult conversations that they had recently experienced in their personal and professional lives.
Borshansky also led a workshop on dialogue for the local, Jewish learning collaborative “Camberville Open Beit Midrash” and facilitated interfaith dialogue amongst youth participants from diverse religious, racial, cultural, and socio-economic backgrounds in the week-long intensive, Interfaith Youth Initiative (IFYI).
HNMCP alum Corey Linehan ’18 joined the District of Columbia’s Office of the Ombudsman for Public Education, with whom he worked on a two-semester clinical project, in a presentation to the Center for Appropriate Dispute Resolution in Special Education’s national symposium, themed, “Restoring Focus on the Child.” The Office’s presentation highlighted innovations in its current work, the steps it has taken in light of the HNMCP clinical team’s recommendations, and the questions with which it continues to grapple.
HNMCP alum Jyoti Jasrasaria ’18 co-developed and co-produced a new podcast in this, her 3L year. Breached examines issues that have been traditionally framed as an essential element of any American social contract. Over ten episodes, the podcast explores areas of American life where some sort of bargain between us—either explicit or implicit—no longer seems to stand. Jyoti also served as chair of the student advisory committee in the search for the new President of Harvard University. Congrats Jyoti!
Here at the Harvard Negotiation & Mediation Clinical Program we teach and hone the skills of listening well, thinking creatively, and looking at disputes through the lens of the whole system. We examine—through pedagogy and field experience—the arts of negotiation, mediation, dispute systems design, and facilitation to help our students develop critical problem-solving skills, apply theory to practice, and deliver tailored conflict management solutions to our clients. Much to our delight, many of our students have gone on to work in the dispute resolution community. Over the past year we’ve begun a new series on our blog—From the Field. In it we spotlight stories and insights from former students who are working in the field of dispute resolution. We hope you enjoy this new section on our blog and encourage you to comment and be in conversation with its writers. We hope to bring new posts in the upcoming year. In the meantime, please peruse the first five installments in the series:
About Political Dialogue in a Confrontational Culture by Oriol Valentí i Vidal ’17
On Applying Models of Negotiation to Real Life Challenges by Sandy Vasher ’07
Applying Negotiation Skills in the Foreign Service by Matilda Jansen Brolin LLM ’16
Principled Negotiatins and Complex Peace Processes: Reflections on Connecting Theory to Practice: Part I and Part II by Lisa Dicker ’17 and Danae Paterson ’16
David Hoffman and Frank Sander
On October 20, 2018, the Harvard University community came together to honor and remember Frank E. A. Sander, longtime professor at Harvard Law School, co-founder of the Program on Negotiation, and considered one of the pioneers of alternative dispute resolution.
“Frank played a preeminent role in shaping that important discipline, which has transformed our legal system,” said Harvard Law School Dean John Manning ’85. “He was a beloved teacher and mentor to our students, a wise and selfless administrator of our school, and a cherished colleague and friend to faculty and staff. He will also be remembered for his exceptional kindness, his unerring generosity, and his ability always to bring out the best in people.” The Sander family has put together a beautiful tribute site to Frank and his career at FrankSander.com.
And as we remember our colleague, we also send congratulations to another colleague, David A. Hoffman, who has been awarded the inaugural Massachusetts Bar Association Professor Frank E. A. Sander Award in Dispute Resolution. Hoffman is the John H. Watson, Jr. Lecturer on Law at Harvard Law School, a founding member of Boston Law Collaborative, a mediator, an arbitrator, and author of several books, including Bringing Peace into the Room. U.S. News & World Report has named him one of its Best Lawyers in ADR, Family Collaborative Law, Family Law Mediation, and Civil Collaborative Law ten times and the American Bar Association Section of Dispute Resolution gave Hoffman its highest honor, the D’Alermberte-Raven award. Congratulations David!
Elaine Lin Hering ’10 writes, “James Lazarus joined us early January of 2018 and we’ve been on a steep learning curve since then on how to: a) meet his interests; and b) hopefully start to shape him into the decent sort of human being the world seems to need now more than ever.”