Purpose:

      To introduce students to choices other than adjudication that may be available for the resolution of client problems. In a simulation, the students are asked to decide whether the case of Tina and Tom is appropriate for mediation.

Brief Description of the Simulation:

      Students are in the role of the "Director of Mediation Services". The Director has been asked by the trial judge for advice as to whether the defendant's motion that a case involving constitutional issues should be referred to mediation. Plaintiff has objected to the motion and wishes to proceed directly to trial.

      Tina and Tom are both 21 years of age, but are mentally functional far below that age, and are wards of the State. The State, in an attempt to provide a less restrictive environment for such clients, has initiated a community-living program. The program permits the director of each State campus to select those persons whom he/she believes to be suitable for such community living. Tina and Tom live in such a community home.

      One of the Mental Health Therapy Aids (MHTAs) reported that she observed Tina and Tom in what she interpreted as a romantic embrace which involved mouth-to-mouth kissing. The MHTA interrupted Tina and Tom before anything else took place.

      The director ordered that Tom be removed from the home and placed in another community-living program home at a different location. The director was concerned about a State law which prohibits sexual relations between persons who are mentally disabled and who are wards of the State.

      The allegations of the ACLU's complaint in State court include assertions that the State has violated plaintiff's constitutional rights to liberty and association. There are also allegations of violation of equal protection and due process. In addition, there is an allegation that the Director acted arbitrarily and capriciously in removing Tom from the home.

      The State Attorney has filed a motion with the court to have the matter referred to mediation. The reasons for the motion are set forth in the State's motion papers. The ACLU argues that the matter should proceed expeditiously to trial; that the matter should not be referred to mediation.

Assignment:

      The students meet outside of class in groups of three to five to discuss their positions. Students then are asked to write a two-page memo in response to the judge's request for advice. They are given readings to assist them in their responses. A class discussion follows, starting with three to five students in a "fish-bowl" responding to the instructor in the role of the judge. The "fish-bowl" is then expanded to a discussion by the full class.