Mediation Role-Play:

Broken Benches

Author(s): Marjorie Corman Aaron and JAMS/Endispute
Four-person mediation and/or arbitration of a personal injury claim, among plaintiff, plaintiff's lawyer, and counsel for defendant's insurance company; arbitrator roles include possible plaintiff or defense bias

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SCENARIO:

Roy Thomas, Director of Athletics at Benton College, was at the Benton College gymnasium to attend an intercollegiate wrestling match when he fell ten feet to the gym floor. He injured his elbow, shoulder and back. He was transported to the hospital in an ambulance, hospitalized for a day, and bedridden at home for for a while after that. After intensive therapy, Roy’s physical condition was “largely resolved.” A therapist prescribed use of a special exercise device if the affected areas stiffened up. However, Mr. Thomas chose an alternative and expensive treatment method.

Mr. Thomas has suffered three relapses in the last year, when he was laid up for a week. He claims difficulty concentrating and sleeping, as well as negative effects on his work and sexual relationships with his wife. Thomas and his wife filed suit against Pro Bleachers for negligent design, manufacture, and installation of the bleachers. Pro Bleachers, through its insurer Pinnacle, has denied liability. Counsel has suggested that after initial negotiation and stalemate, the parties use an ADR procedure to attempt to settle the case.

Note: Participants should be arranged in groups of three. The third person in each group will either be a mediator, an arbitrator with a potential bias for the defense, or an arbitrator with a potential bias for the plaintiff.

 

MAJOR LESSONS:

  • This exercise presents the opportunity to use a careful analysis of the interests of the parties to craft an agreement to solve a dispute.
  • This game is an opportunity to compare mediation and arbitration — including arbitration by arbitrators with different backgrounds. Interesting discussion should ensue from the comparison of the different groups.
  • The exercise allows individuals to reflect on the legitimacy of claims and the role that “fault” plays in the negotiation process.
  • The need for a BATNA to maximize the results.
  • This exercise illustrates the danger of single-issue bargaining. Should participants limit the negotiation to a monetary dispute, the participants will be locked in a contest of wills. Hard bargaining may well emerge, resulting in a situation in which one party’s gain will ensure a loss to the other party.

 

If you prefer a mediation-only version or an arbitration-only version, please contact the Clearinghouse by phone at 800-258-4406 or by email at chouse@law.harvard.edu to place a special order. Otherwise, you will be given equal numbers of mediator, Arbitrator Siewell (potential defense bias), and Arbitrator Blake (potential plaintiff bias) roles.

 

Broken Benches Attributes

Time required:
1-2 hours
Number of participants:
3
Teams involved:
Yes
Agent present:
Lawyer, Non-lawyer
Neutral third party present:
Mediator, Arbitrator
Scoreable:
No
Teaching notes available:
No
PON Teaching Negotiation Resource Center

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Soft copy vs. hard copy

You may order this role simulation in either soft copy (electronic) or hard copy (paper) format. If you select the soft copy option, you will receive an e-mail with a URL (website address) from which you may download an electronic file in Adobe Acrobat PDF format. You are then permitted to view the document on your computer and either print the number of copies you purchased, or forward the electronic file as many times as the number of copies you purchased. You will only receive a link to one electronic file per document. So, if you order 25 soft copies, you may either forward copies of the link to 25 people via e-mail, or print (and/or photocopy) 25 hard copies of the document.

If you select the hard copy option, you will receive paper copies of this role simulation via the shipping method you select.

The purchase price and handling fee are the same for both soft and hard copies. Soft copies do not entail a shipping fee.

For additional information about the soft copy option, please visit our FAQ section, or contact the PON Teaching Negotiation Resource Center at tnrc@law.harvard.edu or 800-258-4406 (within the U.S.) or 781-966-2751 (outside the U.S.).

Please note: At the present time, Teaching Negotiation Resource Center soft copies are compatible with the following versions of the Adobe Acrobat Reader: English, German, French, Spanish, Swedish, Portuguese, Japanese, and Korean. If you have a different version of the Acrobat Reader, you may wish to download one of these at http://www.adobe.com/products/acrobat/readstep2.html, or contact the PON Teaching Negotiation Resource Center at tnrc@law.harvard.edu, 800-258-4406 (within the U.S.), or 781-966-2751 (outside the U.S.) for further assistance. This restriction does not apply to the freely available Teacher’s Package Review Copies.

Ordering a single copy for review

If you wish to review the materials for a particular role simulation to decide whether you’d like to use it, then you should order a single Teacher’s Package for that role simulation. A PDF, or soft copy, version of the Teacher’s Package is also available as a free download from the description page of most role simulations and case studies. There is no need to order participant materials as well as a Teacher’s Package, as all Teacher’s Packages include copies of all participant materials. In addition, some Teacher’s Packages (but not all) include additional teaching materials such as teaching notes or overhead masters. Please note that the materials in Teacher’s Packages are for the instructor’s review and reference only, and may not be duplicated for use with participants.

Ordering copies for multiple participants

If you wish to order multiple copies of a role simulation for use in a course or workshop, simply enter the total number of participants in the box next to “Participant Copies.” There is no need to calculate how many of each role is required; the Teaching Negotiation Resource Center will calculate the appropriate numbers of each role to provide, based on the total number of participants. For example, if you wish to order a 2-party role simulation for use with a class of 30 students, you would enter “30” in the box next to “Participant Copies.” You then would receive 15 copies of one role and 15 copies of the other role, for use with your 30 participants. As another example, if you ordered 30 participant copies of a 6-party role simulation, you would receive 5 copies of each role.

In the event that the number of participant copies you order is not evenly divisible by the number of roles in the simulation, you will receive extra copies of one or more roles. Participants receiving the extra roles may partner with other participants playing the same role, thus negotiating as a team. So, for instance, if you ordered 31 copies of a 2-party role simulation, you would receive 15 copies of the first role and 16 copies of the second role. One of the participants playing the second role would partner with another participant playing that same role, and the two would negotiate as a team.