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Association of American Law Schools 2003 Annual Meeting Washington, D.C. Thursday, January 2 - Sunday, January 5, 2003 |
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Friday, January 3, 2003 8:45 a.m.-5:30 p.m. Annual Meeting Workshop on Dispute Resolution: Raising the Bar and Enlarging the Canon
Concurrent Session: Mediation: Should We Teach What the Market Wants?
Peter Robinson
Why is this topic important?
We are stumbling into an incredible question with all kinds of ramifications. Throwing caution to the wind and hoping that these comments without caveats will be among friends, I propose the following:
Our program teaches two kinds of students: mostly young law students who will not be neutrals for decades and mid career professionals (mostly lawyers) preparing to be neutrals.
For the law students, the answer to this question is buried in a law school wide issue of the extent to which the ADR courses are suppose to teach students to think like lawyers or to develop skills associated with legal practice. The "relationally sensitive problem solving approach to mediation advocacy" would probably be described by non ADR faculty members at typical law schools as teaching students to stop thinking like a lawyer. However, many ADR faculty members would defend this approach to advocacy as a very artful lawyering skill for certain kinds of cases.
Knowing that the ADR classes could form a good part of the lawyering skills curriculum for many law schools, the issue becomes whether these classes should provide a broad scope of skills lawyers would need to develop to serve their clients well when settling cases.
"Teaching what the market wants" suggests that the average lawyer mainly works on cases that requires skills other than "relationally sensitive problem solving approaches to mediation advocacy." This question is important because it creates an opportunity for the ADR faculty to consider if his/her school's curriculum prepares students for common if not dominant kinds of legal cases dealing with issues or personalities that do not lend themselves to relationally sensitive problem solving approaches.
If the ADR courses are the only source of lawyering skills related to settlement, then shouldn't the norm to be to cover the broad scope of settlement skills a lawyer might need to serve the client.
What are some of the gaps between academia and practice in the area of dispute resolution?
1. The presence of evaluation in the mediation of legal disputes with attorney advocates participating.
2. How to manage attorney advocates in mediation?
3. How the attorney uses the mediator to manage his own client.
4. Distributing fixed pies in a mediation.
5. How clients and attorneys can / should both participate in a mediation.
6. Who does the mediator serve....attorney or principle?
In short, many of the mediation courses are very similar to the community mediation courses many of us took as we entered this field. The model we are teaching has not evolved to assume that lawyers are participating and to take advantage of the resource and dynamic attorney advocates create when participating in the mediation. If we teach mediation in law schools, shouldn't the assumption of context be that lawyers are participating and the model morph to account for their presence?
What are some answers?
Teach mediation with an assumption that attorneys are present and participating.
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