Frank E. A. Sander: An Undisputed Pioneer

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The Summer 2006 issue of the HLS Alumni Bulletin featured a tribute to Professor Frank E. A. Sander on the occasion of his retirement written by Robert C. Bordone, the Thaddeus R. Beal Assistant Clinical Professor of Law and the director of the HLS Negotiation and Mediation Clinical Program. Professor Bordone’s full tribute is below:

When I first met and began to work with Bussey Professor of Law Frank Sander ‘52 as a 3L at Harvard Law School in 1997, I realized that, when it came to finding a mentor in the world of law and alternative dispute resolution (ADR), I had struck gold. During the past decade of my association with Frank Sander, I have come to admire and respect Frank as a scholar of titanic proportions, as a noble and revered leader of the Law School and, most importantly to me personally, as a generous, kind, and other-centered mentor, colleague, and friend.

Without Frank Sander’s enormous scholarly contribution to the law, it is hard to imagine what my own law school education would have been like. Thanks in large part to Frank’s work, ADR, mediation, and negotiation have become standard course offerings at both Harvard and virtually every other law school in the United States. Along with several others, including HLS Emeritus Professor Roger Fisher ‘44 and HBS Emeritus Professor Howard Raiffa, Frank is responsible for laying the intellectual groundwork that gave birth to this entirely new sub-discipline of the law, one that has grown enormously during the past 30 years.

Dispute resolution academics regard Frank’s now-famous address entitled Varieties of Dispute Processing delivered at the 1976 Pound Conference convened by Chief Justice Burger as the official birth of the modern ADR movement. In this famous address, Frank boldly imagined a court system that would function as a diagnostic gatekeeper for parties, directing them to the dispute resolution process (mediation, negotiation, litigation, arbitration, or some combination of these) best suited for their own dispute.

With this speech, Frank’s scholarly focus turned more fervently to the development of the field we now know as ADR. His work in dispute resolution was – and is – at the frontier of thinking. His seminal 1994 piece Fitting the Forum to the Fuss remains among the most oft-cited ADR pieces ever written. More recently, as the presenter of the 2006 Schwartz Lecture at Ohio State University, Frank outlined his proposal for a Mediation Receptivity Index (MRI) that promises to excite ADR academics and professionals for years to come. Along the way, he has written dozens of articles on ADR and related topics as well as his casebook Dispute Resolution: Negotiation, Mediation, and Other Processes, now in its Third Edition. He’s also received nearly every honor and accolade available in the field of ADR today. Indeed, in 1989 the American Bar Association funded a lecture series to make possible an annual presentation by a leading scholar or practitioner, naming it the Frank E.A. Sander Lecture Series.

Of course Frank’s contributions to the law did not begin in 1976. After graduating from Harvard College, magna cum laude, in 1949 and Harvard Law School, magna cum laude, in 1952, Frank clerked first for Judge Calvert Magruder of the U.S. Court of Appeals for the First Circuit and then for Mr. Justice Felix Frankfurter of the U.S. Supreme Court during the term when Brown v. Board of Education was decided. After brief stints at the U.S. Department of Justice and the Boston firm of Hill & Barlow, Frank returned to the Law School where his scholarship and teaching focused on taxation and family law. In addition to publishing articles on these topics, Frank is the co-author of Cases and Materials on Family Law, 3rd Edition, Tax Aspects of Divorce and Separation, 4th Edition, and Readings in Federal Taxation, 2nd Edition.

At first glance, one might wonder how a tax and family law scholar could find himself the patriarch of ADR in the U.S. But for those who know him, the answer is simple. Frank sees connections across disciplines and he has a confidence and adventurous spirit that inspire him to step outside his comfort zones to try something new, even if it seems unconventional or unexpected. Though my own relationship with Frank began when he was 70 years old, I have often marveled at his willingness to experiment with new methods for approaching sticky, persistent problems, whether they are global or local. When I first worked as Frank’s teaching assistant in the Negotiation Workshop during January 1997, I can recall suggesting to Frank that we experiment with an exercise that would have all 24 of our students lying flat on the floor of Pound 202. At his initial skeptical look, my heart sunk. “Why did I suggest something so utterly ridiculous to a 70 year old Harvard professor? What a fool I am!” Then, to my utter surprise, he responded, “I’m not sure it will work. But let’s try it. We’ll surely learn something useful from this.”

This was the first of the many times I’ve been impressed and gratified by Frank’s willingness to embark on new endeavors even when it would have been much easier (and more-than-justifiable) to simply remain content with the routine. During the past few years, for example, Frank and I have worked collaboratively to develop a new advanced reading group for our students on Dispute Systems Design (DSD). Our reading group on DSD this spring was over-enrolled and together we’ve taken on some of the most challenging disputes systems design tasks of our generation, exploring topics as wide-ranging as the functionality of sexual harassment policies on university campuses to the design and implementation of the 9/11 Compensation Fund designed as an alternative to the traditional tort system for the victims of 9/11. I can only hope that when I’m nearly 80 years old that I will be as motivated to explore unfamiliar intellectual terrain as is he.

Frank’s contributions extend far beyond the mere scholarly, however. His gentle manner, his sense of fairness and integrity, and his remarkable humility have made him one of the Law School’s quiet leaders and quintessential “good citizens.” Along his steadfast work on many Law School and University committees through they years, Frank had the special responsibility of serving as Associate Dean from 1987 to 2000. Those who attended or worked at the Law School during those years know that these were times often marked by great contention both within the faculty and among the student body. Through it all, Frank retained the admiration and respect of all, by insisting on integrity, by remaining a good listener, and by acting according to conscience. I can honestly say that I have never heard a negative word uttered about Frank Sander. Not surprisingly, I have never heard him utter a bad word about anyone else. Indeed, more than any academic contributions he may have made, these are the qualities that I aspire to in my own life and career and that I seek to model for my own students here at HLS.

Of course, Frank’s sense of adventure is not limited to the world of law. Perhaps less widely known but nonetheless of great value for those of us residing in the greater Boston area is Frank Sander’s up-to-date booklet entitled Sander’s Good Eats. The 30+-page booklet reviews virtually every eating establishment in the Boston/Cambridge area. I have been a special beneficiary of Frank’s penchant for fine food. When his gracious and devoted wife Emily plans out-of-town travel, Frank invites me to join him for dinner at one of Cambridge’s new and ever-more-eclectic eating establishments. These evenings of excellent food and even more wonderful companionship have become a cherished part of my relationship with Frank and are but one example of the many opportunities I have had to benefit from his great wisdom and mentorship. Indeed, during my 3L year, it was Frank who first encouraged me to pursue a career teaching negotiation and dispute resolution and it was Frank, together with another of my mentors, Professor Robert Mnookin ‘68, who supported and endorsed my nomination to serve as a faculty member in the negotiation program. Likewise, it was Frank who generously offered to me the opportunity to co-edit The Handbook of Dispute Resolution and then served as a key adviser and coach throughout the writing and editing process.

Quite apart from the professional advice and mentorship, however, Frank’s lasting impact on me is and will always be his deep humility and his constant regard for the dignity and uniqueness of each individual with whom he comes into contact. Examples of this abound for me: When working as his teaching assistant in 1997, I was gratified by Frank’s never-ceasing appreciation for my efforts and ideas (even those that didn’t work out so well), whether made to me personally or expressed publicly in our daily teaching team meetings each evening. More recently, when having lunch in the Hark with Frank, I noticed curiously that the cafeteria workers seemed to know Frank by name. Upon closer observation, though, I realized that the opposite was also true: he knew each of them by name. This past autumn, I suffered through a somewhat sustained period of illness (from which I have happily recovered fully). Imagine my surprise when Frank not only called with his warm get-well wishes but personally offered to intervene, going as far as to call his own physician on my behalf.

Indeed, whether interacting with colleagues, deans, or students, Frank is one who remembers others and who reaches out to them, without regard to their status, power, or influence. This regard for other people is most extraordinary. And it is what I will most miss when Frank takes on emeritus status in July. For my own part, I intend to keep his spirit and mentorship vibrant for years to come by celebrating and encouraging my own teaching assistants’ efforts, by learning and using the names of the cafeteria staff, and by always being willing to explore the world – academic, culinary, and otherwise – in ways that takes me beyond my own comfort zones, and beyond my own experience.

— Robert C. Bordone ’97 is the Thaddeus R. Beal Assistant Clinical Professor of Law and the Director of the Harvard Law School Negotiation and Mediation Clinical Program.

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