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"ADR Prof Blog" - 5 new articles

  1. Is Legal Education a Zombie?
  2. Negotiation Advice for Graduate Students’ First Jobs
  3. Updates on current and former FINRA Dispute Resolution executives
  4. Glover on Mandatory Arbitration and Public Law
  5. Carrel – ADR as First Career Video Blog Update
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  8. Prior Mailing Archive

Is Legal Education a Zombie?

Lately, we have talked about Sleeping Beauty, Cinderella, Prince Charming, fairy godmothers, aristocrats, wicked witches, mutant children, beasts, step-sisters, cooks, doctors, firefighters, and boy scouts. (Note several different links.)  Now zombies, black holes, frogs, and more junior royalty.

 

My colleague, Rafael Gely, recently sent an email to folks in our Center about the work of Professor Ray Worthy Campbell of the Peking University School of Transnational Law. Ray has written several articles about legal education, including The End of Law Schools.

 

The title may be a bit misleading as it conjures images of law schools collapsing into a black hole. Actually, he argues that law-schools-as-we-know-them need to end and be transformed into “schools of legal professions” to better satisfy society’s needs.

 

The article begins by reviewing the parallel development of legal practice and legal education in the US relating to Langdell’s familiar educational model. Ray writes that both the legal profession and legal education are struggling with the 2008 economic crisis and other challenges. He writes,

 

at least in the typical required curriculum, [law students] haven’t been taught how to negotiate, they haven’t been taught how to build teams or work within organizations, and they haven’t been taught how to work with clients. They don’t learn project management techniques and wouldn’t know how to discuss modern information management technologies. It would be considered déclassé at most schools to suggest that they should learn how to market themselves, either within the organizations they will join or to the general public. They haven’t been shown how to build a balanced life in the law, one where they can achieve professional excellence and yet have a satisfying personal life. In short, they haven’t been taught how to ‘think like a lawyer’ in many of the core areas that define successful lawyers today, and will increasingly define them tomorrow.

 

Ray notes that there are new kinds of service providers using people with some legal knowledge but that don’t require people with full-fledged law degrees. Such professionals and para-professionals include but are not limited to those dealing with compliance, legal process management, e-discovery, and mediation. He argues that, considering societal needs, law schools should provide training and scholarship for all legal service occupations (not just traditional lawyers) and produce research about “law as experienced by the ‘end user,’” among other things.

 

This brief summary doesn’t do justice to the rich discussion in the article, which people in the DR community should find of interest. So when you can’t read one more exam and are ready to procrastinate from grading for a while, you might take a look.

 

Ray refers to law schools as “zombies” and makes the following provocative observation:

 

The persistence of the Langdellian model has not been for lack of thoughtful critiques and rational reform proposals. Thoughtful articles and books have been written; blue ribbon panels have come and gone. Nonetheless, like a zombie staggering on despite body blow after body blow, American law schools continue to lurch forward with a core educational vision that is readily recognized as Langdell’s own.

 

Are we working in zombie institutions? Have we become zombies ourselves? (I’m looking at you, deans – though really all of us.) Or, as we would like to believe, are we zombie-busters? Most of us would like to see the transformation of zombies from frogs into beautiful princes and princesses (to mix metaphors a tad). Certainly there have been changes such as the incorporation of some clinical and DR instruction.

 

But is the zombie fundamentally the same, as Ray suggests? Will the zombie mindset and the forces of inertia continue to dominate legal education so that this transformation idea is just a fairy tale that’s never gonna come true? Or will there be a happy ending to this story?

 

What do you think? Email me. You never write. You never call.

 

Best,
John

    


Negotiation Advice for Graduate Students’ First Jobs

This morning’s edition of “Inside Higher Education” (one of the two or three sites I read every morning) includes an article by a current PhD student entitled, “Basic Negotiation Advice for Grad Students.”  Available here.

Pieces are consistent with the commonly understood “best practices” of our field, such as they are.  Prepare well.  Don’t just focus on numbers.  Postpone commitment until the end.  Don’t say Yes just because they offered something.  Etc.

Pieces are questionable, or worse, at least as articulated.  “Have a counteroffer in mind before negotiations start.”

I wonder whether any of you provide help in one form or another to the students on your campuses (beyond those in your classes) to help them with these really important first negotiations.  Some years ago, I wrote a super-brief thing for our Career Center about job negotiations.  I have no idea if they still use it.  Once, I was asked to come talk with some PhDs about their job search negotiations.  But really, I do essentially nothing in this regard.

And at least this morning, that’s feeling like a mistake on my part.  I’d love to learn what others do.

MM

    

Updates on current and former FINRA Dispute Resolution executives

It’s been a while since I’ve had a chance to post here – and now have a few (almost outdated) updates about FINRA Dispute Resolution leaders – both past and present.  In September, Linda Fienberg, long-time leader at FINRA Dispute Resolution announced that she would retire as of November 30.  FINRA CEO Rick Ketchum tapped Rick Berry, Senior VP and Director of Case Administration, to replace her, promoting him to Executive VP and Director of Dispute Resolution.  I wish Rick well in his new role, and know him to be a highly capable and effective leader.

One wonders whether the post-retirement Linda will continue to have a voice in the securities ADR world, like her former colleague George Friedman.  Far from fading out of sight, former Director of Arbitration George Friedman has used his post-FINRA retirement time to write prolifically about arbitration.  Given his many years as an ADR forum executive, he brings a lot of knowledge and expertise to his writings, which are usually quite insightful, predictive, and uncannily accurate.  A recent example here predicts the impact of the midterm elections on consumer arbitration.  His article on Technology, Alternative DIspute Resolution and the Insurance Industry predicts how technology will impact ADR.  I look forward to reading further predictions from George!

    


Glover on Mandatory Arbitration and Public Law

Professor Maria Glover (Georgetown) has posted her paper Disappearing Claims and the Erosion of Public Law on SSRN. The article will be published in the Yale Law Journal. Here’s the abstract:

The Supreme Court’s arbitration jurisprudence in the last five years represents the culmination of a three-decade long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. As scholars have traced, privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process. Accordingly, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. In this piece I argue that the Court’s recent arbitration jurisprudence undermines the public law itself.

Indeed, whereas the shift from dispute resolution in courts — the public realm — to dispute resolution in arbitration — the private realm — initially undermined values of adjudication, the shift from public lawsuits to private arbitration now also threatens values of lawmaking. This new threat to the lawmaking function stems from the Court’s authorization of mandatory private arbitration clauses as a way for private parties to construct procedural rules that have the foreseeable — indeed, possibly intended — consequence of rendering those claims a nullity. The Court’s recent arbitration jurisprudence thus threatens the values of public dispute resolution in a fundamentally new and more dramatic way. Through the procedural device of private arbitration, private parties can effectively rewrite substantive law by precluding or severely impeding the assertion of certain types of civil claims. And they can do so almost entirely outside of public view, through commercial (and sometimes) confidential contracts subject to virtually no public scrutiny or regulatory oversight. In short, the Court has handed private parties the power to recalibrate substantive legal obligations, and because this power is largely unchecked, there is currently little to stop this erosion of public law.

    

Carrel – ADR as First Career Video Blog Update

Alyson Carrel (Northwestern) passes along this update about her ADR as First Career Video Blog.

——————————

In September, I launched a new video blog called ADR as 1st Career, in order to collect and celebrate stories of individuals who chose the ADR field as the place to start their professional careers. In the past 3-4 months, the blog has grown from featuring just 5 individuals to now featuring 28 (with many more on the way). I have talked with ADR professionals from the east coast to west coast and even overseas in England and Italy. And the blog has been viewed over 2800 times.

I received a lot of feedback on the blog from folks surprised to find out that there are so many individuals who claim ADR as their first career – who chose to ignore the sage advice to practice law or establish themselves in another field first before transitioning over to ADR as a second or even third career. And although this path is still rare compared to other professions, there are a large number of folks who because of their passion and dedication, or in some cases sheer luck, realize they can in fact pursue a career in ADR at an early age or soon after graduation.

The individuals featured in this blog tend to be entrepreneurial, passionate, and steadfastly dedicated to dispute resolution as a way of life (see for example, J Kim Wright, Robyn Weinstein). The stories range from traditional full time mediation work (private mediators Kahlil Palmer, Gururaj Kumar, Jason Dykstra, and court mediators Peggy King, Stephanie Senuta) and ombuds work (Annalisa Peterson), to directing agency/court mediation programs (Shawn Davis, Caroline Torosis, Amy Koltz) or community mediation programs (Cassie Lively, Mac Steele). A few are legal counsel in ADR departments or ADR organizations (Vik Kapoor, Tracey Frisch), work in academia or law school clinics (Heather Kulp, Donna Erez-Navot, Debra Berman and Stephanie Bell), and some work internationally (Scott Hinkle, Romina Canessa). I interviewed veterans in the field (such as Geetha Ravindra), folks who first started mediating in peer mediation programs (Clare Fowler) and one who just graduated law school this year and started her first ADR position this fall (Asha George). I have to admit that some of the individuals featured on the blog did in fact work in other fields for a bit before starting their career in ADR, but still do not fit the narrative of the traditional path to ADR (working as an attorney for 20 years or better yet, a judge, retiring a little early and then mediating) – (Jason Harper, Peggy King,).

The blog has been featured on Mediate.com, mentioned in a number of workshops for folks thinking of pursuing a career in ADR, shown in ADR classes, and gotten a little attention on twitter. But one of my favorite responses to this blog comes from Laura Noah, a full time mediator in the Cook County Family Mediation program. Laura recently wrote a post on her blog about the realization that as the next generation of ADR professionals, we have a story to share. That for those of us who started in mediation at such a young age, at such an early stage in our career, it is odd to realize that we are no longer the babies, the newbies, the novices whose role is simply to observe, learn, and absorb. It is our role now to lead, to guide, to mentor, to support.

I hope you have been enjoying the videos. And please continue to encourage your students and alum to contact me if they would like to share their story (and if your career path would make a good fit, please consider sharing it with us as well). Hearing about so many individuals who have chosen to forge this path, trail blazers in the field, is inspiring. But even more so, I am beginning to think there is a new narrative to be told. That the efforts to increase ADR curriculum in law schools, on college campuses, in high schools and even elementary schools, is changing the landscape as to what is possible. Choosing ADR as your first career may not be easy, you may not be on the fast track to making millions, but if you are passionate about this work, it is possible.

 

 

 

    


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