August 19, 2009
Through participation in the Harvard Negotiation and Mediation Clinic (HNMCP), nearly 30 Harvard Law School students have the opportunity to work on projects for real-world clients each year. Founded by Clinical Professor of Law Robert Bordone ’97 in 2006, it is the first legal clinic in the U.S. focusing on dispute systems design and conflict management.
Last year, several students were able to put what they learned in the classroom to work for a variety of clients, including some in international settings.
Environmental project in China
Last March, two students in the clinic spent a week in Chengdu, China, working with Chinese lawyers to develop effective tools for resolving environmental disputes.
About 60 Chinese lawyers involved in environmental issues attended a two-and-a-half-day training seminar presented by Brian Chernoff ’10 and Maggie O’Grady ’09 under the guidance of Stephan Sonnenberg ’06, a Clinical Fellow and Lecturer on Law with the HNMCP. Their program, which involved lectures, negotiation simulations, and breakout sessions, offered a range of dispute resolution tools.
“This was the best experience I had in law school,” says O’Grady, who is joining Boston’s WilmerHale this fall. “It was the most exciting and the steepest learning curve in the shortest amount of time. I feel really grateful for the opportunity.”
O’Grady and Chernoff began the year-long project last fall when they were enrolled in a class on Dispute Systems Design taught by Bordone. The students worked to develop the curriculum and materials for the seminar and tested their materials on fellow students before taking the program to China. “We did a lot of thinking about what parts of what we teach here would translate to a different culture, and lot of it translated well,” says O’Grady.
Chernoff is particularly interested in applying the negotiation and mediation skills he’s learned in an international context. “I’ve always had an interest in negotiation in international settings, so I was really excited to have the opportunity to go to a place like China and experience what it was really like,” he says.
The Clinic is working with NRDC on a follow-on project in China in the upcoming academic year, which will give students a chance to build upon previous work “and see real impact,” says Bordone.
The program was organized jointly by the National Resources Defense Council (NRDC) in Beijing, the All-China Lawyers Association, the Sichuan Provincial Lawyers Association, and the Environment & Resources Law Institute at Peking University. HLS Professor Bill Alford ’77, director of East Asian Legal Studies, recommended the HNMCP to the NRDC in Beijing for the project.
Land dispute project in North Carolina
Last March, two HLS students -- Jared Strumwasser ’10 and Becky Jaffe ’09 – traveled to eastern North Carolina with Matt Smith ’05, a Lecturer on Law and a Clinical Fellow at HNMCP, to work with a multi-generational African American family trying to decide the best use of 150 acres of farmland and woodland.
The three were part of the “heirs project,” which assists families in land disputes that are common to the area. In the Deep South, there are hundreds of large tracts of land that have passed down through generations of African American families without a formal will. Jointly owned by many family members, the land is often the source of serious family conflict, making it nearly impossible to achieve consensus on doing anything with it, including making improvements or divvying up the tax bill. As a result, over the past 100 years, many of these African American families have ended up losing the land to forced sales by the courts.
While the value of the land can be significant, the unwieldy ownership structure can render it nearly worthless for the families. “There’s reduced incentive to improve the land,” explains Jaffe. “If you’re one of 15 owners, why put in 100 hours improving it if you only own a small percent?”
As title to the land is often unclear, there are other problems, including difficulty in qualifying for loans to make improvements. And if one person insists on selling his or her interest, a court may order the entire property sold since it can be impossible to divide it into parcels of equal worth.
While there are legal mechanisms that can help families maintain more control over their land, just getting everyone to participate can be very difficult. Working with the Heirs’ Property Retention Project in North Carolina, the Clinic’s role is to work with individual families to help them figure out what they want to do with their land and how to resolve disputes over it.
In the weeks before they flew to North Carolina, Strumwasser, Jaffe, and Jonathan Korin ’10, who was also an integral part of the team but couldn’t make the trip, conducted phone interviews with all the members of the family to learn about disputes and to gauge the family’s willingness to resolve them.
When the students finally met family members at a local motel conference room, they were happy to see how receptive they were. “One of them said, ‘This is an historic moment for our family,’ and had brought a camera to the meeting,” recalls Jaffe. She and Strumwasser set a positive tone for negotiations by asking everyone to discuss their favorite foods, moving from there to more difficult topics. The family was exceptionally gracious to the students, taking them on a tour of the property and inviting them to return as guests.
“Helping a family maintain their ancestral land was very rewarding,” says Strumwasser. “At times it got very emotional. We uncovered some issues that are bound to exist in any family, and there were definitely moments when I feared we might have actually made this situation worse. But ultimately, we resolved all the tensions and there was nothing but smiles and backslaps, and promises that if I come back to North Carolina, they’d cook me barbeque.”
Said Bordone: “The student team did a terrific job translating some of the conflict-mapping and mediation tools we teach in the classroom to an entirely different and challenging context, one that provides a novel set of process options to address very important challenges facing African American families in the South.”
Capacity building project in Nigeria
Last May, while their classmates were in Cambridge finishing finals and papers, two students in the HNMCP spent five days in Lagos, Nigeria, helping village elders from the Niger Delta learn how to negotiate with Chevron and other oil companies on the best use of regional development funds. Mohamed Faizal LL.M ’09 and Stephanie Early ’09, travelled to Lagos to test out negotiation simulations they tailored to the specific needs of their Nigerian clients.
While Chevron has for some time donated money and other resources to areas of Nigeria in which it drills for oil, those projects were sometimes not what the communities themselves would have chosen.
“Chevron would say, ‘We’ll build a school,’ but oftentimes it wasn’t what the community thinks it needs, and the process actually disempowered the community,” says Stephan Sonnenberg ’06, a Clinical Fellow and Lecturer on Law with the Clinic, who traveled with the students. Meanwhile, from the company’s perspective, it may have spent millions of dollars on development that seemed to make no real difference in the lives of people in the community, Sonnenberg says.
The premise of the project, which has been ongoing for two years, is to connect local stakeholders directly with Chevron in order to determine the best use of the corporation’s contributions to the community. The Consensus Building Institute (CBI) in Cambridge, Mass., has been working to form a number of regional development councils in Nigeria, composed of village elders from every community affected by a particular Chevron activity.
While CBI offers training tools for resolving disputes, many of their simulations didn’t work in this particular context. “Some of the simulations don’t click at all for a villager,” explains Sonnenberg. “For example, the allocation of parking spaces at an office building is not something a Nigerian village elder would empathize with.”
With this challenge in mind, the students arrived as the regional councils and Chevron were completing their fourth round of negotiations over the best use of corporate resources for the coming year. Several village elders, as well as facilitators from the New Nigeria Foundation, stayed afterward to test out new negotiation training tools that Early and Faizal customized for them. For example, in a typical negotiation training, written materials are handed out; participants review the materials, then practice negotiating various scenarios. However, many of the Nigerian elders aren’t literate. So Faizal and Early, working with a Nigerian “Nollywood” film producer, created four videos to teach participants how to negotiate.
“This project was exciting for a number of reasons,” says Bordone. “We’re working with a major multinational company, a local NGO, and the community in an effort to improve their ability to distribute funds to maximize development for the good of all the stakeholders.”