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Oiling Rusty Wheels: A Small Claims Narrative,
50 Florida Law Review 761 (1998).
Narrates a small claims mediation conducted by the
author. Presented as an example of how narrative can
be used in clinical teaching, the article chronicles
a challenging landlord tenant matter resolved by an
agreement reached during a court-ordered mediation
in the Alachua County, Florida, County Court, Small
Claims Division. Analyzes contemporary theories of
effective mediation actions and describes how these
concepts are used to help students learn questioning
/ listening / negotiating skills. Also explores many
difficult ethical issues small claims mediators confront
facilitating constructive conversations between lawyers
and non-lawyers, skilled and unsophisticated negotiators,
and knowledgeable repeat players and legally uninformed
litigants. It critically evaluates the amended Florida
Standards of Professional Conduct for mediators as
the author applied them in this mediation.
This article was part of a symposium that received an award for outstanding achievement for publishing in Alternative Dispute Resolution from the American College of Civil Trial Mediators. It has been used in county court mediation training programs and the author uses a condensed version of the article in the intensive seminar that begins the classroom component of the County Mediation Clinic.
Mapping, Modeling, and Critiquing: Facilitating Learning Negotiation, Mediation, Interviewing and Counseling,
48 Florida Law Review 875 (1996)
Outlines
ways lawyers can help law schools better balance curriculums
by extending the reach of non-trial, professional
skills courses to more students. It recommends lawyers
work closely with faculty who teach large enrollment
classes by helping smaller groups of students develop
and improve important lawyering skills. Using negotiation
as an example, this essay argues lawyers can play
three critical roles as students assess and improve
skills. (1) mapping—helping students plot their
way through the broad and specific guiding frameworks
that competent professionals use, even if only intuitively,
to play and evaluate actions: (2) modeling—demonstrating
a reflecting approach to learning that incorporates
an openness to the variety and complexity of challenges
involved in applying theory to practice; and (3) critiquing—providing
specific feedback balanced between positive interpretation
and constructive criticism that helps students develop
crucial reflective learning skills.
This article was listed as worth reading in the April 6, 1988, issue of the National Law Journal. It’s premises have been repeatedly tested successfully in the large enrollment Negotiation and Mediation course the author -- assisted by skilled practicing attorneys -- offers students.
Forever Jung: Psychological Type Theory, The Myers-Briggs Type Indicator, and Learning Negotiation,
42 Drake Law Review 1-121 (1993)
Advocates and evaluates use of Carl Jung’s theory
of psychological types as measured by the Myers-Briggs
Type Indicator [MBTI] in law school courses aimed
at developing negotiation theoretical knowledge and
skill. Effective negotiation requires dealing well
with differences. Lawyers typically confront different
perceptions, interests, and values when they negotiate.
The differences encountered affect information acquisition
and dissemination, judgement, communication and control.
Jung’s theory of psychological types suggests
individuals use common behavioral approaches to each
of these tasks that often differ dramatically from
actions others use. After explaining type theory,
this article connects these insights to strategic
and stylistic choices made by students enrolled in
eight negotiation classes taught by the author over
a four year period. Extensively justifies conclusion
that type knowledge helps students appreciate what
behaviors come naturally, almost habitually to them
and what actions require much more concentration to
produce quickly. It links this insight to adult learning
theorists who argue that ineffective habits can only
be changed when students become aware of how their
actual behaviors differ from their planned actions.
Maybe That's Why I Do That: Psychological Type Theory, the Myers-Briggs Type Indicator, and Learning Legal Interviewing,
35 New York Law School Law Review 169
[co-authored w/ Dr. Martha M. Peters]
Advances and empirically tests a straightforward proposition—that
lawyers who are more self-aware can become more skillful
interviewers. Using Carl Jung’s theory of psychological
types as the vehicle for analysis and testing, the
article advances a general hypothesis that type preferences
influence action choices so that learning one’s
preferences enhances abilities to maximize use of
these natural actions and to learn ways to counter
them and behave differently when contexts require.
Blending interdisciplinary work and empirical investigation,
article explores specific behavioral predictions based
on type theory to two very concrete facets of skillful
interviewing: phrasing questions and listening effectively.
Analyzing transcripts prepared from 23 videotaped
initial interviews of actual clients seeking to end
their marriages made with the consent of these clients,
article generates data that supports most of its predictions
based on probable type influences.
You Can't Always Get What You Want: Organizing Matrimonial Interviews to Get What You Need,
26 California Western Law Review 257 (1989-90)
Articulates a framework for organizing inquiry to
conduct matrimonial interviews effectively. Advances
a necessary, context-based modification of the general
prevailing theory’s emphasis on recreating past
acts to establish what rights exist. In matrimonial
contexts the de-emphasis of fault and fairness orientation
of applicable legal rules usually make recreating
what happened less significant than getting information
about what clients want to do now and in the future.
Develops a framework for getting details regarding
specific topics affecting what should happen as assets,
liabilities and parental benefits and burdens are
allocated. In addition to advancing an interviewing
approach that has subsequently gained wide acceptance,
the article generates valuable data about the difficulty
many law students experience generating effective
actions representing actual clients after simulation-based,
classroom practice of these behaviors. This research
showed far more frequent inquiry than listening choices,
and a high rate of paraphrasing content as compared
to acknowledging feelings when using active listening.
It replicated earlier empirical studies showing a
high rate of ineffectively phrased compound and leading
questions and a disproportionate use of closed rather
than open inquiry. It also found important empirical
support for the theory that acknowledging feelings
frequently produces additional information as well
as confirmation of the emotion reflected. The article
ends by defending its proposed model against a critique
of psychological visions of lawyering published in
the Stanford Law Review.