This summer I was tending to family matters, so I paid no attention to the big news of the passage of the ABA’s Revised Standards for Approval of Law Schools. And once I got back for the beginning of the semester, my focus was strictly on getting my classes ready. Yeah, I responded to Jen’s email on the list serv about simulation classes, but that was about it. So you can imagine my surprise this afternoon when I found out that the Revised Standards say
Standard 304. Simulation Courses and Law Clinics
(b) a law clinic provides substantial lawyering experience that (1) involves one or more actual clients, and (2) includes the following:(i) advising or representing a client; (ii) direct supervision of the student’s performance by a faculty member; (iii) opportunities for performance, feedback from a faculty member, and self-evaluation; and (iv) a classroom instructional component.
In my mediation clinic, all of our mediations are conducted through court ordered mediation – the litigants are required to go to mediation in order to receive a trial date. More importantly, my students are part of the court’s mediation program – a stable of court mediators who are court volunteers organized by the court itself (applications, background checks, court badges, etc.). In other words, my students are part of the court writ-large; and the court writ-large does not engage in advising or representing clients. So it appears that my mediation clinic is now written out of the definition of a law school clinic as of August 12, 2014, when the Revised Rules became operational.
I am not saying that mediation clinics are joining the dinosaurs. In fact, I can see clinics that (a) have referral sources that are not courts, and (b) advise clients about various issues related to their dispute such as options, procedural issues, and legal information (as opposed to legal advice) maintaining their good graces in the eye of the ABA. But I can also see our field saying “that’s not what we do.”
And for those of us who no longer are officially clinics, I don’t expect that we’re going anywhere. The skills and theory we teach are important for lawyers, our classes are popular with students, and the fieldwork is among the best educational experiences the students will have. That said, we have to come up with new nomenclature. There’s always “Mediation Practicum,” but that’s so last century. What do you think of the likes of “Mediation Lab”? Labs are the rage, are they not? Any suggestions?
Update: Carol Izumi (Hastings) rightly points out that Sandard 302(d) (Learning Outcomes) says that students need to show competency in “other professional skills” necessary to be an ethical and competent lawyer. Interpretation 302-1 says that such skills may include negotiation and conflict resolution among others. This reinforces my belief that although mediation clinics may no longer be considered clinics, they’re not going to be written out of the curriculum.
Update # 2: The ABA Dispute Resolution Section, via Jim Alfini (South Texas), has been in contact with the Barry Currier, the Managing Director of the ABA’s Section of Legal Education. In response to Jim’s email discussing the issue brought up in my post, Currier said “We’ll think this through and I will consult within our process and get back to you.” Also, he pointed out that Revised Standard 304 will be phased in by making it applicable to students who are 1Ls in the fall of 2016. So that give us 2 plus years to either be reinstated as clinics or to come up with other nomenclature.
Update # 3: In my limited investigation into this matter, I’m told that the revised definition of clinics was designed specifically to keep schools from abusing the word “clinic”. Apparently a number of law schools have been labeling their externships (working at Legal Aide, for example) as clinics. According to my sources, these schools have been promoting a ridiculously high “clinical enrollment” when in fact, they have only 1 offering (or none) that most of us would consider a clinic. So it appears that in trying to solve one problem, the revised rules have created another.
Guest blogger Kristen Blankley (Nebraska) provides the following insights from the recent racing incident involving NASCAR legend Tony Stewart who killed a fellow driver Kevin Ward after Ward’s car crashed and Ward got out of his car and walked onto the race track. For some press stories about the incident go here and here.
Many of you may know that I am a huge sports fan. At times it seems contradictory – I am a fan of something that cannot ever be mediated! Sports games and matches have winners and losers, and no one can negotiate (within the bounds of the rules) the final outcome. That said, sports are also full of conflict – both on and off the field – including labor relations, player negotiations, salary disputes, cheating, and so on.
One recent incident has had me thinking about a number of my favorite themes to teach in mediation class. On August 9, 2014, NASCAR driver Tony Stewart fatally hit a fellow racecar driver Kevin Ward Jr. during a Sprint Car race in northern New York. During the race, Stewart drove perhaps too close to Ward, and Ward’s car crashed into the wall. Within a span of less than 20 seconds, Ward got out of his car, walked down the racetrack, and Stewart hit Ward, who died from the impact.
Sports media, racing fans, and even casual YouTube watchers all seem to have developed very strong opinions on what happened. Many state that Stewart intended on scaring (or even hitting) Ward and purposefully drove too close to him. Other claim that Stewart did nothing wrong and, in fact, is the victim. As mediators, we likely all believe that the truth lies somewhere in the middle.
This incident brings to mind two very important lessons. The first lesson is perspective and judgment. Neuroscience teaches us that our brains make judgments in fractions of seconds. Upon learning a body of facts, our brains automatically filter out “useless” information to help us make snap judgments. Hearing the same set of facts and watching the same videos has caused people to come to radically different conclusions regarding Stewart’s intent. The fact remains, however, that none of us were in Stewart’s racecar, saw what he saw, and reacted how he did. We don’t know the visibility on the track, the best way to move around slowing traffic, or how the car was handling. Instead, we are rushing to judgment based on an incomplete set of facts. In mediation and conflict counseling, I try to help clients understand the difference between facts and judgments so that they can move down their ladders of inference and gain valuable perspective.
The second lesson is one on contribution and blame. The excellent book Difficult Conversations by Douglass Stone, Bruce Patton, and Sheila Heen explains how having the role a person has in a difficult situation (i.e., the “contribution”) is not always blameworthy (i.e., at “fault”). This concept, while basic, is also novel to most lay persons. We commonly equate contribution with blame, and yet often times we contribute to a bad situation, even when we are not blameworthy. For Stewart, he certainly contributed to the accident – he was driving the car that hit Ward. Ward contributed as well – he exited his racecar and walked down the track. But is either man blameworthy? I can’t answer that question, and I do not know if anyone can. I do, however, use this technique with mediation parties (usually in caucus) so that they can assess how the situation has gotten to the present point. Even when a party believes they are not “at fault,” they are often more willing to settle once they see how they have become involved in the situation.
The Dallas Bar Association Collaborative Law Section, the Global Collaborative Law Council, the SMU Dedman School of Law, and the Texas Center for Legal Ethics are co-sponsoring the 10th Annual Collaborative Law Practice Conference on October 8-10 at the Belo Mansion, located at 2101 Ross Avenue, Dallas. This conference is open to all interested in dispute resolution – not just to lawyers! Mediators, Human Resources professionals, Mental Health Professionals, and other ADR professionals are all welcome to attend.
This conference includes two separate seminars: on October 8 we will have a 3-hour program on unbundled legal services presented by Forrest “Woody” Mosten, a nationally recognized authority on the subject, and on October 9-10 a two-day training on civil collaborative law, involving both classroom presentations on the process and extensive interactive role play in a hypothetical dispute (this year, an international employment law dispute). Guest speakers at the training seminar include Marc Sheridan of New York and Florence Gladel of Paris, France. Additionally, in celebration of our 10th anniversary, on Thursday night we plan a special outing to the State Fair of Texas for all interested participants!
A discount is available to participants who sign up for both programs. Further details and registration can be found at: http://www.law.smu.edu/Events/Dean-Suite/10th-Annual-Collaborative-Law-Practice-Conference.aspx?c=hpEvent_10th-Annual-Collaborative-Law-Practice-Conference.
This announcement comes from Alyson Carrel (Northwestern) in the wake of this summer’s discussion about the Next Generation of ADR scholars on the list serv.
There has been a lot of discussion on DR list serves about the next generation of ADR professionals, practitioners and academics. For recent graduates interested in pursuing a career in ADR, the advice they often receive is to first practice law or gain experience in another field before transitioning to ADR as a 2nd (or even 3rd) career. I assume this advice stems from the personal experience of those giving it – as this was the career path of ADR’s founding generation. But is this necessarily the narrative for our next generation? I have a feeling that narrative is changing and decided to explore this idea by creating a new video blog (www.adras1stcareer.blogspot.com).
At the 2013 ABA-DR annual conference, I participated in a panel discussion organized by Donna Erez-Navot from University of Wisconsin, Tracey Frisch from AAA, and Heather Kulp from Harvard Law called “ADR: The Next Generation”. The panel focused on how to successfully start your professional career in the ADR field. The four of us all ignored the advice to pursue a career in something else before transitioning to ADR. Instead, we forged our own career paths, creating a path to ADR as first career where one did not previously exist. We thought by telling our stories, we might illuminate a new path for others similarly interested in starting out their professional careers in the ADR field. As we prepared our talk, we began to realize our stories were somewhat similar and I began to wonder if each of our paths was so unique after all. Then in reflecting on my many colleagues who started their careers in ADR right out of college, graduate school, or law school, I felt certain our paths were no longer as unique as I thought. So why is the narrative still defining ADR as a 2nd (or 3rd) career? I am hoping this video blog will help us shift that narrative and more accurately describe what it means to pursue a career in ADR and what is (and what is not) possible.
The fear in telling students and recent grads to pursue a career in ADR is that those jobs simply don’t exist and as their professors, trainers, and mentors, we are doing them a disservice by setting them up for disappointment. But is that in fact the case? My guess is that this blog will in fact highlight a large number of individuals who successfully pursued ADR as their first career who are happy and lead rich professional lives. I don’t think these individuals are necessarily making a living as full time private mediators, but instead are working as administrators, government or court employees, clinicians, and trainers. Is there anything wrong with that? As we prepared our panel discussion, we received the feedback that we should really focus on tips for becoming full-time private mediators and to stay away from careers in government agencies, clinical teaching positions, or work at non-profit/community mediation centers. Why do we down play administrative positions or government mediation jobs? Is this similar to the distinction made in law school between big law and public interest? And if so, is this the real disservice?
I don’t pretend to know the answer to this question, but I hope the video blog will help shed light on this issue and I am hopeful that the career paths they describe, while unique to our mentors and the first generation of ADR practitioners and academics, is not so unique in and of itself. Their stories will show that there are others who have successfully forged a career path in ADR as their first career. In fact, it may be a path more clearly marked and defined than we originally thought.
I’d love to hear your thoughts on this blog and want to encourage individuals to share their story. Please visit www.adras1stcareer.blogspot.com and share your story and encourage others to share theirs.