Increased Access to Court for People with Disabilities

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1 July August 2013 Volume 47, Numbers 3 4 Americans with Disabilities Act Amendments Act s Protections for Individuals with Learning Disabilities Increased Access to Court for People with Disabilities Equal Access for Clients with Limited English Proficiency Human Rights Approach in Immigration Advocacy California s Sargent Shriver Civil Counsel Act U.S. Supreme Court on Preemption to Invalidate State Laws in Conflict with Medicaid Advocacy Stories: Chicago Students with Learning Disabilities Drug-Testing of Welfare Applicants in Florida Recovering from a Missouri Tornado Hmong American Farmers in Minnesota Training: Negotiation Skills

2 TRAINING PROGRAMS Negotiation Skills: The Online Learning Challenge By David Cruickshank David Cruickshank Partner Edge International 1150 Akron St. San Diego, CA Can attorneys and advocates learn negotiation skills online as well as they can in a face-to-face course with expert instructors? That was the challenge we faced when I worked with the Sargent Shriver National Center on Poverty Law to design a new online Negotiation Skills course (Shriver Center, Negotiation Skills (n.d.), In this review of the experience, I discuss the objectives of effective negotiation skills training, the necessary elements of a skills training cycle, examples of negotiation microskills, and the lessons learned in piloting this new course. The core skill framework that we wanted participants to learn was problem-solving negotiation, as described in the assigned book Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher et al. (1983). Comparing Face-to-Face Courses to Online Learning Courses To establish a baseline for comparison, I choose the typical two-day face-to-face seminar or course offered by continuing legal education organizations or private companies that target a broad business community (such as that two-day $1,000 course you see advertised in airline magazines). Some of such courses fall short of being skills courses. A course with one instructor, a hundred participants, and no practice with expert feedback may be a course about negotiation knowledge, but it cannot deliver improved negotiation skills. The better negotiation skills courses have limited enrollment, several practice opportunities, and feedback from expert coaches (see table). The substantive content of these courses might tilt to litigators or to transactional lawyers, but the case content is always going to be straightforward (tort or contract case) because the designers want to focus on negotiation skill outcomes. Above all, they want you on-site for two days with only short breaks. An Effective Skills Training Cycle To qualify as a skills training course, a course design must have certain features. These features are what separate true skills courses from lectures about skills. If you are familiar with National Institute of Trial Advocacy training sessions, you will recognize the model: n Describe a framework or theory for the skills. n Describe the criteria for effective performance of the skills. n Demonstrate positive performance of the skills, then give participants a chance to discuss and ask questions. n Practice the skills in a meaningful case context, under observation. n Receive feedback from a skilled observer or coach. n Practice again and receive feedback until a basic level of competence is reached. n Reflect on the skill framework or theory as applied to the cases. Before I go any further, I have to clarify the term online as used to describe the Shriver Center s course. The Negotiation Skills course is not a purely web- 126 Clearinghouse REVIEW Journal of Poverty Law and Policy n July August 2013

3 Training Programs Face-to-Face Negotiation Course Compared to Online Negotiation Course Feature Number of participants Participant preparation On-course time required Travel time required Lectures, demonstrations, large-group question-and-answer time Negotiation practice exercises (number and time) Feedback opportunities Substantive applications Number of instructors Course fee range Participant costs above course fees Average evaluation score (scale of 5) Face-to-Face Course 16 4 hours 2 successive days (13 hours of class time) 1 to 24 hours 6 hours 3 exercises, 7 hours 3 1 demonstration case and 1 learning case 1, plus 3 coaches $600 $1,200 Up to $1, Online 24 4 hours 3 partial days in one week (12 hours of class time) None 4.25 hours 3 exercises, 6.5 hours 3 2 demonstration cases and 2 learning cases 1 3, plus course coordinator $345 $795 None 4 5 cast course. This online course includes advance reading, five webinars, several paired and small group exercises (including three practice negotiations) conducted by phone, online discussion, and use of for document exchanges. The course includes a complex set of activities that cannot succeed without a detailed instructor manual and an excellent course coordinator. Compared to a face-to-face course, this online course has clear advantages. As a participant, instead of traveling and getting my materials at the course, all I have to do is go to my office, place a do not disturb sign on my door, and have a good Internet and telephone connection for the webinars and exercises. The online Shriver Center course uses all of the elements of a good skills training cycle, as described above. Moreover, the course uses case studies in family law, landlordtenant law, and foreclosure, all presented in a legal services context (see table). Learning Outcomes for Problem-Solving Negotiation Skills Courses The desired learning outcomes for both a face-to-face and an online course look like those described in the Shriver Center course. In a course on problem-solving Clearinghouse REVIEW Journal of Poverty Law and Policy n July August

4 Training Programs negotiation skills, we expect that, at the conclusion of the course, participants will be able to n describe their Best Alternative to a Negotiated Agreement; n identify the interests behind the parties positions; n respond to positional statements with inquiries or statements about interests (yours or theirs); n respond to personal attacks by focusing on the problem before the parties; n generate options to resolve the dispute and seek mutual gain; n raise legitimacy criteria when reviewing options raised on both sides; and n achieve a resolution of the issues through a combination of problem solving and positional bargaining. To achieve better negotiation performance, understanding the negotiation framework in Getting to Yes is not enough for, if so, you could read the book over two evenings and be a better negotiator. In real-world negotiations, we come up against competitive no-compromise negotiators or against negotiators who care about their positions and care little about your interests. Thus problemsolving negotiation skills are a new section of your toolbox, not the only skill set. And a good course integrates the objectives above with the behavior of typical negotiators faced by legal services attorneys and advocates. Microskills in Problem-Solving Negotiations Another key to effective instruction is to build in the microskill behavior that negotiators need. This means translating the prescriptions in Getting to Yes into concrete skills usually a refined communication skill. Here are two examples of microskills we practice in the Shriver Center course: Responding to Positions with Interests. Getting to Yes prescribes that negotiators should focus on interests over positions (id. at 40 55). We need to look for the other side s interests to see if there is any overlap with ours. But how should I respond to this type of demand? Landlord: The tenant is in default. I am fed up. I want her out in fifteen days. Here is the notice to appear in court. A microskill in this situation requires (1) checking your tendency to reply with a position ( But you have not responded to our demands for repairs and heating! ) and (2) devising a question or statement that seeks to explore the other side s interests ( Help me understand the need for urgency here? ). Through demonstration, practice, and feedback, participants learn to reframe a contentious position and turn the conversation to interests on both sides. The Power of Legitimacy Criteria. Getting to Yes observes that many negotiations are governed by objective external criteria a leading legal precedent, a housing regulation, or the local policies of a federal office (id. at 81 94). Again, a microskill is helpful when using this idea in practice. Our participants in the pilot course recognized that they were underprepared if they had not thought of legitimacy criteria. Preparing well means going beyond the legal criteria to understand local practices, business criteria, and court processing costs. We also teach participants to ask, What is the basis for your demand/position/expectation? 128 Clearinghouse REVIEW Journal of Poverty Law and Policy n July August 2013

5 Training Programs To move skillfully away from emotional demands and toward objective criteria requires practice and feedback. The ability to implement legitimacy criteria in simulated negotiations proved valuable to our pilot participants. Measuring Effectiveness The Negotiation Skills online course unfolds over three days during one week: Monday (5.5 hours), Wednesday (4 hours), and Friday (2.5 hours). In the week before the course begins, there are several reading assignments. During the training week, participants work on negotiation case preparation in the times between the scheduled course activities. Participants connect to the course and faculty from their local offices. During one negotiation practice via phone conference, a participant in Texas negotiated with a participant in Massachusetts, while others in Connecticut and Vermont observed. The table summarizes the main course features. As an experienced negotiation trainer in face-to-face courses, I had low expectations of powerful skill outcomes in an online course. Nevertheless, I was surprised by how well things worked. Asking and answering questions online during webinars (by chat pod or telephone) was easy, and free conference call lines are amazing! Videotaped demonstrations, with transcripts, that participants watched on their own time are more powerful than I initially thought, and training participants to be good observers of negotiation skills is highly effective in making them better negotiators themselves. I was also surprised at the way learning in chunks can be designed into online courses as well as in face-toface courses. However, there are some constraints in the online course model that are more easily overcome in a face-to-face course. In an online course, there is no room for error in timing, setting up exercises, or forming trios, whereas in a face-toface course, you can just redirect people to new rooms or tables. Because participants in online courses are in their offices, they are subject to significant interruptions unless they shut themselves away. Nonverbal communication is lacking in negotiation practice and feedback, and technology glitches, such as a slow Internet connection, can hamper some participants. And accommodating the differing substantive law interests of the participants is harder (even though we obtained profiles of online course participants in advance). In a world of generous training and travel budgets, many instructors and participants would prefer a face-to-face two-day negotiation course over an online course, I believe. As an instructor, with a good design and exercises, I am confident that I can deliver solid learning outcomes for most participants in an inperson setting. But we no longer live in that world. The good news is that ever-cheaper technology allows us to get close to the faceto-face course experience through a combination of design, skilled instruction, and the creative use of online learning tools. The cost-benefit winner here has to be the online negotiation skills course, such as the new Shriver Center course. The course still requires some fine-tuning, but it represents the closest replication of a face-to-face negotiation skills course experience that I have found. Despite a significant skills training challenge, this creative course can serve the legal services community well. Clearinghouse REVIEW Journal of Poverty Law and Policy n July August

6 Subscribe to Clearinghouse Review! Clearinghouse Review: Journal of Poverty Law and Policy is the advocate s premier resource for analysis of legal developments, innovative strategies, and best practices in representing low-income clients. Each issue of the Review features in-depth, analytical articles, written by experts in their fields, on topics of interest to lawyers who represent low-income people. The Review covers such substantive areas as civil rights, family law, disability, domestic violence, housing, elder law, health, and welfare reform. Get Your Online Subscription Today! n Clearinghouse Review: Journal of Poverty Law and Policy is published online six times per year. n Your subscription includes online access to the current issue and the archive of articles published since With this online access your site license your organization s entire staff will enjoy fully searchable access to a wealth of poverty law resources, accessible from any computer or mobile device. n Newly subscribing individuals and nonprofit programs are entitled to special discounts on our Training Programs. CUT HERE n Each subscriber receives Clearinghouse Review News, a monthly e-newsletter that covers matters of interest to poverty and public interest law practitioners. Please fill out the following form to receive more information about subscribing to Clearinghouse Review. Name Organization Street address Floor, suite, or unit City State Zip Subscriber Annual Price o Nonprofit organization... $300 $1,800 (varies with size of operating budget) o Law school library... $500 o Individual... $400 Please this form to subscriptions@povertylaw.org. Or fax this form to Subscriptions at Sargent Shriver National Center on Poverty Law 50 E. Washington St. Suite 500 Chicago, IL 60602