 Legal Studies Research Paper Series Research Paper No. 2024-22 It’s Time to Make Important Upgrades to Our Mediation Curriculum John Lande This paper can be downloaded without charge from the Social Sciences Research Network Electronic Paper Collection |
Appendix Texts Relevant to Mediation Counseling and Advocacy
Faculty teaching law school mediation courses do a very impressive job. We are committed to giving our students a good understanding of mediation theory and practice to help them serve their future clients. We enrich our courses with an incredible range of issues and pedagogical innovations. We generously contribute syllabi, teaching materials, and ideas to the Dispute Resolution in Legal Education (DRLE) website and listserv and to the annual resource share at the ABA Section of Dispute Resolution’s Legal Educators Colloquium that Sharon Press has organized with Bobbi McAdoo and Noam Ebner. Sharon is collecting resources in Mitchell Hamline’s Laboratory for Advancing Dispute Resolution Skills Teaching.
Based on a study of mediation clinic and simulation courses, this article suggests upgrades of our mediation curriculum for the coming year’s courses. The current curriculum is a legacy of pedagogical innovations from the last century. Many things have changed since then, and it’s time to upgrade the curriculum addressing these changes and the needs of new graduates. The suggestions in this article also should be relevant to ADR survey and lawyering courses.
This article grows out of a combination of issues I have written about recently. Research shows that new lawyers generally are “woefully unprepared” to work with clients and to negotiate. So it’s important to prepare students for real-world practice. Law students and law schools have an increased interest in updating the curriculum because the NextGen bar exam will include questions about client relationships and management, client counseling, negotiation, and dispute resolution. Some states plan to use mechanisms for licensing that would require demonstration of practical skills.
Preparation for mediation sessions is critically important. It can help parties empower themselves and improve the quality of mediation. New graduates need improved instruction in mediation because many lawyers provide little or no preparation of clients for mediation sessions and courts generally do little to promote preparation for mediation sessions. There is an especially great need to help self-represented parties like the program in the US District Court for Southern Illinois, which helps them prepare for and participate in mediation in cases with legally-represented counterparts.
My main suggestion is to include a better balance of instruction about mediation counseling, advocacy, and neutral services. Currently, mediation courses focus overwhelmingly on teaching neutral services with little or no instruction in mediation counseling or advocacy. In my view, we should focus primarily on counseling and advocacy, and I hope that this focus will predominate in the coming years while also including instruction neutral services in those courses. In addition to preparing students for legal practice, it should help prepare them for the NextGen bar exam.
This article begins by providing historical context about legal practice and education, comparing the situations in the “olden days” and modern times. It provides a brief description of modern mediation curricula based on a review of mediation clinics. It then describes benefits of and problems with the mediation curriculum. The heart of this article is a set of suggestions for upgrading the mediation curriculum.
In 2019, Pepperdine, Texas A&M, and the ABA Section of Dispute Resolution sponsored a conference, Appreciating our Legacy and Engaging the Future. It appropriately encouraged us to appreciate the legacy of our pioneers, who provided insights and approaches that benefitted those who followed. At the same time, it’s important to recognize important changes in practice and to embrace insights, ideas, and techniques reflecting the current and likely future realities.
After the conference, I invited people to suggest theories of change to advance our field. I was blown away by the response. I received so many responses that
I compiled them into a book, Theories of Change for the Dispute Resolution Movement: Actionable Ideas to Revitalize Our Movement. The suggestions in this article are offered in the same spirit and hopefully will inspire your interest in innovating. You should be able to incorporate most of my suggestions in your courses next year with fairly modest adjustments.
Modern mediation practice and education began in the late 20th Century, which I call the “olden days” as depicted in the following graphic.
Art Hinshaw, Andrea Schneider, and Sarah Cole’s first Discussions in Dispute Resolution volume referred to the “foundational articles” published before the turn of the century. In 1976, Frank Sander proposed a multi-door courthouse. In 1979, Robert Mnookin and Lewis Kornhauser wrote Bargaining in the Shadow of the Law. In 1981,
Roger Fisher and William Ury published Getting to Yes. In 1982, Len Riskin published Mediation and Lawyers, describing lawyers’ “standard philosophical map.” The ABA created a special committee on the resolution of “minor disputes,” which evolved into a section in 1993. In the 1990s, theories of facilitative, evaluative, and transformative mediation were developed, stirring great controversy.
In the olden days, pioneers of our movement experimented with various ideas and techniques, and theorists described their observations and aspirations for our nascent field. At the time, ADR truly was “alternative” to the traditional legal system, as depicted in the graphic above.
At first, ADR leaders struggled to gain legitimacy and acceptance in the legal world. They succeeded remarkably quickly. In 1990, Congress enacted the Civil Justice Reform Act, which required each federal district court to develop a “civil justice expense and delay reduction plan.” The law required each court to consider referring cases to ADR processes, specifically mentioning mediation. By 1998, Congress enacted the Alternative Dispute Resolution Act, which requires each federal district court to adopt local rules implementing its own ADR program. Many state courts developed robust mediation programs as well. Mediation and similar processes became honeycombed throughout myriad public and private organizations.
In 1994, the ABA Section of Dispute Resolution, American Arbitration Association, and the Society of Professionals in Dispute Resolution (SPIDR) adopted the Model Standards of Conduct for Mediators. This was updated in 2005 by the AAA, the full ABA, and the Association for Conflict Resolution, the successor to SPIDR.
At first, mediation practice was relatively simple by today’s standards. Many attorneys didn’t know much about mediation and some felt threatened by it. Mediators and attorneys did relatively little preparation before mediation sessions. People mostly just showed up and participated in substantive joint sessions. They relied on lawyers’ “standard philosophical maps,” which assumed that disputes were zero-sum and should be decided according to legal rules. Mediators often “trashed and bashed” each side’s arguments, in Jim Alfini’s memorable phrase.
Law schools began offering mediation courses during this period. In 1984, the University of Missouri hired Len Riskin to create a Center for the Study of Dispute Resolution. He co-authored an early textbook and developed videos and simulations.
He advised faculty in other schools about teaching mediation in their schools. In 1996, Jim Stark published Preliminary Reflections on the Establishment of a Mediation Clinic. He cited a directory of ADR clinics showing that 34 schools offered mediation (or mediation and arbitration) clinics, noting that 26 of these clinics were established after 1990. An additional 13 schools planned to start a clinic. Probably most law schools’ current mediation curricula date back to this period.
In the olden days, most formal mediation took place in the US. Mediation systems in other countries were basic or non-existent. Americans traveled to other countries to train mediators and help them develop ADR systems for their countries.
There is no bright line dividing the olden days and modern times, but the turn of the century may be a useful demarcation point. In the modern period, mediation has become increasingly integrated in the legal system and practitioners have used more sophisticated techniques.
In 1997, I wrote How Will Lawyering and Mediation Practices Transform Each
Other? based on my observations of mediation practice in Florida. I described what I called “liti-mediation culture” where it “becomes taken for granted that mediation is the normal way to end litigation.” This is particularly true in court systems where courts regularly order parties to mediate. Thus, for legal disputes, there is a great overlap of the work of courts, attorneys, and mediators, as reflected in the following graphic (obviously not to scale).
In 2001, the National Conference of Commissioners of Uniform State Laws first approved the Uniform Mediation Act, thus adding a stamp of legitimacy.
Jim Coben and Peter Thompson catalogued 1,223 state and federal court mediation decisions from 1999 to 2003, showing that mediation itself became embroiled in litigation. They titled their article, Disputing Irony, noting the common view that mediation should be an alternative to litigation and certainly not the cause of more litigation.
In 2008, the ABA Section of Dispute Resolution Task Force on Improving Mediation Quality issued a report after conducting focus groups around the country. The Task Force concluded that the following aspects of mediation in civil cases are particularly important: “(1) preparation for mediation by mediators and mediation participants, (2) case-by-case customization of the mediation process, (3) careful consideration of any ‘analytical’ assistance that mediators might provide, and
(4) mediators’ persistence and patience.”
Indeed, attorneys have become more sophisticated about mediation. Partly, this is a matter of necessity because their cases often are ordered to mediation. And many attorneys recognize benefits of mediation in helping manage relationships with clients and providing a useful way to resolve cases.
These days, parties in the US mediate practically every type of legal case, from the smallest to the biggest. People use mediation and similar processes in a wide variety of non-legal matters. Many countries have robust systems for mediation of their domestic disputes, and the Singapore Convention has increased the legitimacy of cross-border mediation.
I gathered data to provide a portrait of mediation instruction these days. I focused primarily on mediation clinic courses for several reasons. Clinics operate at the intersection of theory and practice. They must teach mediation theory to guide students’ mediations of actual cases. Because students work with real clients and cases, clinical faculty do not have the luxury of simply articulating their preferred views about mediation theory. Rather, they must prepare students to be as effective as possible in satisfying real clients’ expectations.
I also focused primarily on mediation clinic courses because they are easier identify than mediation simulation courses. Many law schools have webpages devoted to clinics or experiential education, so it was relatively easy to find these courses. The website listings don’t provide a completely accurate picture because some courses may be “on the books” but not offered much if at all. On the other hand, some clinics may not be included on the websites. But my search probably produced a reasonably accurate count of mediation clinic courses.
Reviewing the websites of all 194 AALS member and fee-paid schools, I found 45 clinics offering exclusively neutral mediation services, two clinics offering exclusively mediation counseling and advocacy services, and one clinic offering all these services. In other words, more than 90% of the mediation clinics focus exclusively on providing neutral mediation services.
I also tried to identify mediation simulation courses that focus on counseling and advocacy. I sent messages on the DRLE and AALS ADR Section listservs asking people to send syllabi for such courses, and I received syllabi from eight schools. If at least 100 schools teach mediation simulation courses focusing on neutral services, this suggests that more than 90% of simulation courses also focus on neutral services.
I collected syllabi from mediation clinic courses. Practically all the syllabi cover communication skills, mediation procedures, and ethics. They also cover a wide range of other topics listed in footnote 2. In the 14 clinics exclusively offering neutral services whose syllabi I received, about half covered preparation for mediation sessions and mediation advocacy. Not surprisingly, all the syllabi for courses offering counseling and advocacy cover these topics.
Counts based on topics listed in syllabi are crude measures, which may not include some courses that discuss these subjects, and these counts may overstate the depth of coverage in courses where the subjects are listed. But it suggests that preparation and mediation advocacy may not be covered much, if at all.
In clinics where there is little or no time for preparation and few or no parties are legally represented (such as clinics mediating day-of-trial small claims cases), it may not be surprising that these courses wouldn’t cover preparation or mediation advocacy. Even so, these courses are designed to train students generally and I think it’s important to cover these subjects, as some clinic courses do. In particular, it’s important for students to recognize the three basic configurations of participants described below in Part 7.C. This would provide important context for the cases students do mediate.
I don’t have good data about coverage of these topics in mediation simulation courses. It seems likely that there is a similar pattern of coverage (and lack of coverage) in those courses.
In a survey of clinic faculty, I asked them to identify the greatest benefits that their students get from their courses. I got responses from 19 faculty teaching clinics providing neutral services and three faculty teaching clinics offering advocacy services. The following description focuses first on the responses about clinics offering neutral services.
Most faculty identified multiple benefits from their courses. The most common response identified benefits of working on real cases with real clients. One colleague wrote that students routinely appreciate the “opportunity to directly interact with parties, court personnel and colleagues in the context of multiple ‘live’ cases.” Another mentioned the “opportunity to gain experience mediating with real couples, with the ‘safety net’ of an experienced mentor in the room.” In some clinics, students observe and/or co-mediate with experienced mediators.
A related benefit is that students get practical experience. One colleague wrote that students learn about “managing high stress and conflict, time management and importance of preparation, teamwork, personal and professional development as to their identity and the legal profession. The high volume of cases with a new one each week contributes to the fast development of their skills in many areas.”
Many faculty cited the benefits of learning communication and negotiation skills. One wrote, “I believe that negotiation skills are vastly underrated and undertaught in law school and this course is an indoctrination in negotiation skills (even though they are being applied from a neutral standpoint rather than as an advocate).” Others said that students get a broader vision of problem-solving and understanding of emotional intelligence and bias.
Of course, students learn mediation skills. One colleague wrote that students learn how to “help participants discuss the past, seek new ways to move forward with their families in mind, and navigate conflict by using a holistic approach to conflict resolution, instead of the distributive bargain approach to agreement making.” Another wrote that students get to “see the legal process from the perspective of a neutral, rather than an advocate.”
Several faculty said that by observing lawyers in their mediations, students learn about mediation advocacy. For example, one wrote that students “see how attorneys who are representing clients in mediation behave and reflect on whether those techniques served their clients’ interests or not.” Similarly, another wrote that students ‘learn[] how to mediate and also learn[] how to be a good attorney in mediation by watching representation in mediation in the session.” A third colleague wrote that students learn “what makes for a productive mediation when parties are represented by attorneys. [They] develop [a] deep understanding about mediator representation in addition to skills and roles of the mediators.”
Several mentioned other benefits including learning to deal with conflict, gaining confidence, and using reflective learning processes.
The three responses from faculty teaching advocacy clinics did not provide as much detail. They probably could cite many of the same benefits as in clinics teaching neutral services. For example, one wrote about the benefits of dealing with real clients and real cases: “The students greatly benefit from working with live clients and getting used to speaking directly with people and applying a lot in a practical way, rather than dealing in the theoretical application of law to a fictional situation.”
Just as students in neutral service clinics learn about legal advocacy in mediation by interacting with advocates in their cases, students in advocacy clinics learn about mediation by interacting with mediators in their cases.
Students in advocacy clinics gain skills and experience specific to mediation advocacy that students in neutral services clinics don’t get. For example, a colleague teaching an advocacy clinic said that students “appreciate how to prepare mediation advocacy plan; how to draft mediation brief; [and the] difference between mediation advocacy and advocacy as a litigator.” Another wrote that students learn to “distinguish between zealously advocating for a client and that same advocacy while using the collaborative approach in mediation.”
Students in clinics focusing on neutral services gain the benefit of practicing perspective-taking, which can help counteract common cognitive biases due to acting in a partisan role. This is an important skill for attorneys serving as advocates so that they can understand the perspectives of their clients, counterpart attorneys, and judges, and then act accordingly.
Students in clinics providing mediation counseling and advocacy services gain the benefit of performing a kind of mediating role in trying to reach agreement. Communications to clients go through their attorneys, who serve as counselors to explain the counterparts’ and mediators’ perspectives and help clients develop their strategies. When communicating with counterparts and mediators, attorneys serve as advocates, speaking for their clients or guiding their responses. Thus attorneys essentially mediate between their clients and the mediators and counterparts.
Students in advocacy clinics also get the benefit of preparing clients for mediation sessions and working with mediators to arrange mediation sessions to be as advantageous for their clients as possible. By contrast, students acting as mediators may help in pre-session preparation but only to a limited extent. They typically have much less time and information for preparation, and the neutral role substantially limits the assistance they can provide.
Presumably, students in mediation simulation courses can get the same benefits other than the opportunity to work with real clients in real cases. Working with real clients is a great benefit of clinic courses, especially since many students graduate woefully unprepared to work with clients. There are substantial challenges in offering clinic courses, especially to a large number of students. So it’s understandable that law schools provide more opportunities in simulation courses.
5. Problems with the Mediation Curriculum
Much instruction about mediation focuses primarily or exclusively on mediators’ interventions during mediation sessions. Of course, mediation sessions are important parts of the process. But they are only a part of the process, sometimes not even the most important part.
Preparation before mediation sessions can be critically important in shaping the process and outcomes. Good preparation can help parties to be knowledgeable, confident, and assertive and thus feel empowered during mediation sessions. If everyone – the parties, mediators, and attorneys – is well prepared before mediation sessions, it is likely to improve the quality of the process and outcome.
Mediation courses focusing solely on neutral mediation services made some sense in the olden days. In Jim Stark’s 1996 article about his mediation clinic providing neutral services, he argued that the purpose of the clinic should be to “subvert” implicit assumptions that are deeply embedded in legal practice and education.
Unfortunately, legal practice and education generally still are based on the assumptions of the lawyer’s standard philosophical map that Len Riskin described in 1982. So there’s still real value in teaching law students the neutral perspective and skills embodied in mediation.
Mediation practice has changed a lot since the olden times, and the mediation curriculum should change to address the needs of new attorneys. In our liti-mediation culture, many courts require parties to mediate. Attorneys and mediators regularly devote substantial efforts in civil cases to prepare before mediation sessions. Attorneys often dominate the process and there is no joint session in many cases, so parties don’t get to communicate directly with each other. In family cases, attorneys sometimes attend mediation sessions but even when they don’t attend, they often are actively involved “on the sidelines.”
Courses focusing on neutral mediation services implicitly identify mediators as the leaders who control the process that parties and attorneys follow. This is like a movie with actors in leading and supporting roles. The reality usually is more complicated. It’s more like an ensemble. Mediators often cater to the attorneys’ wishes, hoping to get repeat referrals. Attorneys don’t have complete control as they need mediators to help settle cases. Parties play important roles in these dramas even if they do not speak much in mediation sessions.
Under modern circumstances, it does not make sense for 90% of the mediation curriculum to focus on neutral mediation services. New attorneys need to learn and practice skills of mediation counseling and advocacy. It is not enough to discuss mediation advocacy in a single class at the end of the semester or just mention it in passing. Students need much more training in mediation advocacy and especially mediation counseling.
Theorists in the olden days did a remarkable job of describing the circumstances of their time and articulating their aspirations for the future of mediation. Of course, the circumstances have changed dramatically. And we have had the opportunity to analyze and improve the concepts and theories.
The concept of interest-based negotiation (popularized by Getting to Yes) is an important contribution to our understanding of negotiation, highlighting people’s intangible interests and options for agreement in addition to lump-sum payments. It suggests helpful negotiation techniques for identifying parties’ interests, options for satisfying the interests, and selecting options maximizing both parties’ interests. People have used this process quite successfully as I did in my divorce mediation practice in the 1980s. It still can be quite useful in helping parties and their attorneys analyze negotiations “behind the table.” However, the prescription for an interests-andoptions process for negotiation “across the table” between counterparts creates a feelgood, fairy tale, live-happily-ever-after image that isn’t realistic in many cases, especially when attorneys play a major role.
Similarly, the facilitative, evaluative, and transformative theories of mediation offer valuable insights and techniques. They all try to promote party self-determination, albeit in different ways. They suggest that mediators rely on parties’ preferences about the process, help parties make their own assessments, and provide mediators’ input to help parties make decisions. All these prescriptions make sense in some situations and are problematic in others. They rely on strong assumptions about the positive or negative effects of particular mediation interventions that are misleading and counterproductive as generalizations. In 2003, Len Riskin published an extensive critique of the concepts of facilitative and evaluative mediation, but many people in our field have ignored his criticisms and continue to use these flawed concepts.
The old theories rely on false dichotomies that are confusing and counterproductive. For example, parties can – and should – focus on both tangible and intangible interests in the same mediation. They can – and should – negotiate about zero-sum issues and non-zero-sum issues. They can explicitly discuss issues and options as well as exchange counteroffers.
In a single mediation, mediators can help parties make decisions about the process, ask questions to elicit parties’ perspectives and positions, and provide helpful input. These are not mutually exclusive moves. Indeed, mediators often do many of them in the same mediation. The old theories don’t reflect this reality.
Empirical research undermines claims about traditional mediation theories. The ABA Section of Dispute Resolution Task Force on Research on Mediator Techniques report analyzing 47 empirical studies found that particular mediator actions associated with facilitative and evaluative mediation had no consistent effects on certain mediation outcomes. It “found that none of the categories of mediator actions has clear, uniform effects across the studies – that is, none consistently has negative effects, positive effects, or no effects — on any of the three sets of mediation outcomes. These outcome categories are ‘(1) settlement and related outcomes, (2) disputants’ perceptions and relationships, and (3) attorneys’ perceptions.’”
Many faculty have been teaching the same courses for many years, making relatively minor revisions from one year to the next. This is understandable. Faculty generally continue to use the same texts as in prior years. Even when the texts are revised, the content usually is mostly the same with relatively modest updates. Faculty learn what “works” in their courses, and they conclude that their courses “ain’t broke” so they have little reason to “fix” them. Faculty are extremely busy, often overwhelmed with other commitments for scholarship and service, not to mention family and community obligations and enjoying life outside of work.
Faculty teaching clinical courses may be especially reluctant to make changes. Clinics are challenging operations with lots of moving parts, many of which are beyond the faculty’s control.
Faculty know that there’s a limited amount time that students will devote in and outside of class. Adding new elements to a course normally requires omitting other elements that may have worked well in the past.
Even so, when faculty are inspired by ideas that would substantially improve their instruction, they make significant revisions to their courses.
The shift to the NextGen bar exam and various states’ plans to provide for alternative licensing methods can be a significant factor motivating faculty to consider making important changes. Some faculty and schools will look for ways to prepare their students for the exam, and they may be interested in adding or increasing instruction in mediation counseling and advocacy.
The NextGen exam will include questions about client relationships and management, client counseling, negotiation, and dispute resolution. These subjects are particularly relevant for mediation counseling and advocacy, and not very relevant for neutral mediation services. Although the exam will cover dispute resolution, it will almost certainly do so from an advocacy perspective rather than a neutral perspective.
The following suggestions are designed to address the issues discussed above. Some faculty currently do things suggested below. Next year, you may adopt some but not all of these suggestions.
Although this article grew out of an analysis of clinical courses, the suggestions are relevant to mediation simulation courses as well as ADR survey and lawyering courses.
The suggestions below include short readings that you can readily add to your existing reading assignments. In particular, you may want to require students to read the Real Practice Systems (RPS) Menu of Mediation Checklists. Practitioners raved about the checklists, and this article summarizes many ways that they can be useful. The suggestions below include references to specific parts of the checklists.
A future publication will discuss suggestions that would take more time and possibly require substantial coordination or approval of colleagues. It will discuss the potential of collaborating with courts, bar associations, and/or legal aid societies to develop pro bono programs to provide mediation counseling and advocacy to selfrepresented parties in disputes with legally represented parties. Such programs could provide platforms for mediation counseling and advocacy clinics.
It should help students to understand the context of modern mediation practice by giving a short lecture early in the course about the evolution of mediation practice in the past 50 years. You can use material from Part 2 for such a lecture.
B. Prepare Students to be Counselors and Advocates in Mediation
Faculty should prepare their students to serve as counselors and advocates. That’s how most new attorneys will participate in mediation, not as neutrals.
As noted above, almost all mediation courses today focus on the neutral role. Understanding the role of counselors and advocates can provide useful contrasts and insights about the differences between the roles. This can still help students recognize the limitations of lawyers’ standard philosophical maps as well as the limitations of neutrals’ perspectives. Indeed, if you focus on all three roles (counseling, advocacy, and neutral), you can give students the most complete understanding of modern mediation.
You can cover the same issues in class, discussing them from the perspectives of the various roles. For example, you can contrast the way mediators and attorneys view preparation for mediation sessions. It would help to provide substantial attention to each of the perspectives at various times in a course, though you don’t have to discuss all the issues from all the perspectives. The appendix lists texts that provide perspectives of mediation from the counseling and advocacy roles.
In clinic courses where students provide neutral services and some parties are legally represented, it is particularly important to teach students what to expect from the attorneys and how to deal with them.
Some clinics assign students to some cases in which they act as neutrals and other cases where they act as counselor-advocates. Many clinics get cases from different referral sources and it is possible to arrange referrals for both roles.
There are three basic configurations of participants in mediation of legal cases: (1) a mediator with two self-represented parties, (2) a mediator with two legallyrepresented parties, and (3) a mediator with one self-represented party and one legally-represented party.
There are many variations of these configurations including parties represented by teams of individuals, multiple parties, and parties’ constituents who are “not at the table.” For simplicity, this article focuses on the three basic configurations.
New graduates are most likely to operate in the second configuration, i.e., where they represent a client and the counterparty is legally represented. In some types of practice, they may regularly operate in the third configuration, where they represent a client and the counterparty is self represented. Attorneys and mediators often describe this configuration as hard to manage. So students should be aware of common dynamics of this configuration. New graduates are least likely to operate in the first configuration, where both parties are self represented, unless they volunteer to mediate in small claims court or a community mediation program.
Many mediation clinics handle small claims cases where both parties are self represented. These can be excellent learning experiences because they give students opportunities to take initiative and test strategies. It’s important for these students to understand that after they graduate, they will mostly be in mediations where at least one party will have an attorney – them. Thus they should be prepared to work with a counterparty who may or may not have an attorney.
Tamara Relis described how attorneys and clients generally operate in “parallel worlds of understanding.” Attorneys tend to focus only on monetary outcomes, and parties often are concerned about various intangible interests and “not just the money.”
In a blog post, Lawyers Are From Mars, Clients Are From Venus – and Mediators Can Help Communicate in Space, I showed that there is A LOT of empirical evidence supporting Relis’s observation. (See also this elaboration.) Lawyers – the Martians – often focus only on monetary issues in legal disputes, assuming that the disputes are necessarily zero-sum and the expected court outcomes should be the determinative factor in the outcome. This frustrates many of their clients – the Venusians – because they also are very concerned about a wide range of non-monetary issues. Mediators can help address both monetary and non-monetary issues, though many law-trained mediators also are Martians, focusing only on monetary issues. This is particularly sad considering that a virtue of negotiation and mediation is that they aren’t limited to outcomes that courts might order or lump-sum payments. You might assign students to read the Mars-and-Venus post, which will be eye-opening about clients’ extreme frustration with their lawyers.
The evidence shows that attorneys often are lousy listeners and oblivious to their clients’ concerns. So we should emphasize the importance of good listening throughout our courses, not only during a single class. This is important in all three roles – counselor, advocate, and neutral.
E. Focus on Parties’ Intangible Interests as Well as Tangible Interests
We should teach students to focus on the full range of clients’ interests at the earliest appropriate time, not only at the end of a mediation session to “close the gap” between the parties’ positions. Parties often care at least as much about their intangible interests as maximizing their financial outcomes or approximating expected court outcomes. Indeed, they may care more about their intangible interests. Early in their representations, attorneys should conduct thorough interviews of their clients about their intangible interests as well as their tangible interests. Mediators should inquire about the full range of interests in their communications when preparing for mediation sessions.
The RPS Checklists include detailed lists of individuals’ and organizations’ potential tangible and interests and settlement options in addition to lump sum payments. They include questions to help clients value and prioritize their intangible interests. The checklists suggest ways for parties to evaluate the possible outcomes if they don’t settle (aka BATNA value). The checklists identify the intangible interests before expected court outcomes, reflecting the importance of the intangible interests. See pp. 10-11. These issues are relevant both for counselor-advocates and neutrals.
“Reality-testing” questions often focus on mediators’ beliefs that parties have unrealistic expectations about the likely court outcome. Of course, this can be important when parties’ positions are strongly tied to those expectations. Attorneys’ and law students’ “reality-testing” questions often do not address parties’ intangible interests such as stress of continued disputing, damage to reputation and relationships, and opportunity costs, among many others. These intangible interests are easily overlooked, in part because many attorneys and mediators ignore them or tell clients to ignore them because they are supposedly unattainable.
This blog post includes lists of reality-testing questions that attorneys and mediators can ask to help parties consider and value their intangible interests. It can be especially appropriate to focus on intangible interests in simulations because these issues are relatively easy to discuss. By contrast, reality-testing questions about potential court outcomes are harder for students to realistically manage because cases require greater understanding of the facts and law than students generally have.
Many modern mediations are more like ensemble productions than movies with leading actors (the mediators) and characters in supporting roles (parties, attorneys, and other participants).
This reality is reflected in Dwight Golann’s book, Sharing a Mediator’s Powers: Effective Advocacy in Settlement. Indeed, attorneys often exercise great power over mediators. The market for mediators is extremely competitive. As a result, mediators generally are very attentive to the wishes of attorneys, who decide which mediators to hire. Attorneys develop “short lists” of their favorite mediators. It’s hard to get on these lists but easy to be removed if attorneys are dissatisfied with mediators’ performances.
Obviously, parties need to agree to any settlement. Attorneys try to please their clients, who may blame their attorneys if they are unhappy with mediators. Representatives of organizational parties are answerable to their bosses and coworkers about mediation outcomes.
Students should learn that the mediation process really begins when parties first consider using it. They may get information from the court, their attorneys, or mediators explaining how it would work. Mediators and courts often provide general information about mediation on their websites, which may affect parties’ and attorneys’ expectations about mediation. Checklist p. 4.
Students should learn about the full range of ethical issues, which mediators should consider at the outset of mediation cases. The checklist (p. 5) provides a more complete list of ethical issues than in most texts.
Ideally, there would be substantial preparation before mediation sessions as described in the following section.
There are many possible tasks during and after mediation sessions. Actions after mediation sessions vary depending on whether the parties reach agreement. Students should practice drafting memoranda of understanding or settlement agreements. Checklist pp. 9-13.
For attorneys and mediators, the process should continue after mediations end. They should engage in regular practice of self-reflection and possibly participate in ongoing educational practice groups. Checklist pp. 14-15. Faculty regularly debrief simulated and real cases, which provides a good model for reflection when students are in practice.
Because preparation before mediation sessions is critically important to help empower parties and improve the quality of the mediation process and outcomes, faculty should provide a substantial amount of instruction about preparation. This should include the range of communications that attorneys regularly have with their clients, mediators, and counterpart attorneys.
Attorneys should have careful conversations with their clients to develop a common understanding of the facts, law, issues, clients’ interests, and mediation strategy. This should be a mutual education process in which clients’ educate their attorneys about the facts and their interests, and attorneys educate clients about the process and options in mediation and continued litigation.
The ABA Section of Dispute Resolution developed this very helpful guide for preparation, which attorneys and mediators can use to help prepare parties. It also developed versions for family cases and complex civil cases. You can assign students to read one of the guides and tell students to use them in simulations. The Litigation Interest and Risk Assessment book includes this brief appendix providing guidance to help parties and attorneys prepare for mediation sessions.
Ideally, pre-session preparation also involves detailed conversations between the attorneys (or self-represented parties) and mediators and exchanges of documents. These communications should cover logistical and process issues for the mediation session. Checklist pp. 6-8.
Attorneys often provide memos to the mediators (and sometimes their counterparts), which can be very important advocacy tools. Ideally, students should get practice drafting such memos. Brian Farkas and Donna Erez-Navot wrote a very helpful article you might assign, First Impressions: Drafting Effective Mediation Statements.
Many faculty rely on single-stage simulations of mediation sessions, which can focus on particular issues that faculty want to highlight. Exclusive use of single-stage simulations creates a misleading impression that mediation sessions are the only important part of the process and that preparatory stages aren’t important. So you might use single-stage simulations at the beginning of your course and multi-stage simulations after that.
Ideally, there should be at least four stages: (1) attorneys and clients discuss the case including the clients’ goals and interests, (2) attorneys consult with mediators to discuss procedural and substantive issues to prepare for the mediation session,
(3) attorneys and clients discuss the conversation with the mediator and prepare for the mediation session, and (4) all the participants convene for the mediation session. At minimum, some simulations should include stages 3 and 4. You might assign students to complete some of these stages outside of class.
The DRLE website includes a collection of multi-stage simulations, including an initial document with suggestions for developing and using multi-stage simulations. You can expand single-stage simulations by developing materials and instructions for preceding stages. You can create simulations using documents from real cases from Debra Berman’s Lawsuit Database for Negotiation / Mediation Simulations.
The RPS Checklists illustrate how people use technology in multiple ways throughout the mediation process. Practitioners’ responses in a recent ABA educational program anticipate even greater use of technology in the future.
These days, video platforms are essential for practitioners. It became the new normal during the Covid pandemic. After restrictions on in-person interactions ended, many practitioners continue to mediate on video. Turns out that Zoom is the platform of choice these days. In the ABA program, 34 of the 35 people who use video said that they use Zoom. Mediation clinics also report overwhelming using video in their mediations.
We are at an early stage of the development and use of artificial intelligence, which almost certainly will have a huge impact on mediation processes. At the ABA program, practitioners had varied reactions to AI. Some currently use it enthusiastically in a wide variety of ways. Some are hesitant, ready only to just “dip in a toe” right now. Some are wary because of technical problems, concerns about privacy and confidentiality, cost, and difficulty keeping up with the rapid pace of change.
Love it or hate it – I sure feel both ways – technology is going to be an increasing part of our lives and mediation practice in the future. We should prepare students for the technologies they are likely to use in practice. (Of course, they could probably teach us a thing or two about technology.)
K. Use Clear Language Instead of Confusing Dispute Resolution Jargon
The reality of mediation practice is a lot more complex and nuanced than suggested by the theoretical definitions. Traditional models are incomplete at best and misleading at worst, providing confusing characterizations of what mediators actually do. For example, facilitative and evaluative models consist of very different actions bundled into each model. Many practitioners ignore traditional models because they are confusing or not helpful. People do not understand the theoretical meanings because the terms are inconsistent with commonly-understood language. Arguments about what is real or good mediation have spawned unhelpful ideological conflicts.
I have written various critiques of traditional dispute resolution concepts, which are collected in Part 3 of the RPS Annotated Bibliography, especially Confusing Dispute
Resolution Jargon, Houston, We Have a Problem in the Dispute Resolution Field,
Oxymorons R Us, and everybody’s favorite, “Labels Suck.”
The problem is more than simply ancient verbiage. It’s (past) time to transition from olden theories. Real Practice System Theory is intended to succeed our traditional theories with one that better explains the realities of modern practice. One of the benefits of RPS theory is that it uses readily understandable language, as illustrated by the RPS Checklists. You might mention in class terms like facilitative, evaluative, and transformative mediation so that students are familiar with them but primarily rely on clearer language.
We can use better language that some of our common terms. For example, I suggest using “pre-session,” “pre-mediation-session,” or “before a mediation session” instead of “pre-mediation.” The latter implies that the stages before mediation session aren’t really mediation and are not that important. Obviously, that’s not true.
We generally should use “counterpart attorney” rather than “opposing counsel.” The latter implies that the attorneys are in complete disagreement and do not cooperate. In practice, attorneys agree about many things, such as professional courtesies and stipulations, and they often cooperate in managing litigation and mediation procedures. In addition,”opposing counsel” creates an expectation of an adversary relationship, which is counterproductive.
We should use “self-represented” parties instead of “unrepresented” parties. The latter implies that parties are incompetent to represent themselves without an attorney. This is particularly problematic for our field considering that one of our basic values is promoting party self-determination. We generally should avoid “pro se” and “pro per,” especially if communicating with non-lawyers. It’s better to use clear English words.
Speaking of which, I suggest that we generally use as “good decision-making
(as possible under the circumstances)” instead of “self-determination” or “autonomy.” The latter terms are admirable but unattainable ideals. Everyone is subject to influences on our decision-making so it is impossible to exercise full self-determination or be completely autonomous. It is possible, however, to engage in good decisionmaking. This article suggests a framework for assessing the quality of decision-making (originally called the quality of consent).
We should use “expected court outcome” instead of “BATNA.” After I lectured people about the misuse of “BATNA,” Hiro Aragaki and Sanda Kaufman showed how I misunderstood and misused the term. (You may too.) They pointed out that a BATNA is a process, not the result of the process. This concept is a lot more complicated than most of us realize. Read this post. And don’t even think of using WATNA.
But wait, there’s more. We should focus on the “bottom line” instead of the “BATNA” or even “expected BATNA value.” The Litigation Interest and Risk Assessment book encourages parties, attorneys, and mediators to consider their bottom line, which is a combination of (1) expected court results, (2) tangible costs (like legal fees), and (3) the parties’ valuation of their intangible interests. This bottom line (not merely the expected BATNA value) is the real “trip wire” for deciding whether to settle or continue litigating. (Note that the parties may still settle before trial, so the alternative usually is continuing to litigate, not necessarily going to trial.) The bottom line is a complicated concept. Read this post. Of course, this version of the bottom line is not the often-disingenuous claim that one won’t make further concessions.
We generally should say that parties reached a “mutually acceptable” agreement instead of an “amicable” agreement. The latter connotes a friendliness, perhaps involving warm smiles or even hugs at the end of mediation. It creates unrealistic expectations because truly amicable mediations probably don’t occur in most cases.
We should say that “parties didn’t reach agreement” instead of the “mediation failing.” The latter implies that the only standard of success is reaching agreement. The goal of mediation should be to give parties the best possible opportunity to consider their situation and possibly settle, not necessarily to reach a settlement. Sometimes it’s appropriate not to reach agreement. Also, if parties don’t reach agreement, it’s not a failure of the process – it’s a legitimate decision of the parties not to settle at that time. Mediations sometimes lay the groundwork for later settlements.
The analysis and suggestions in this paper grow out of what I have been developing as “Real Practice System” Theory. This theory holds that mediators’ (and other practitioners’) practice systems are based on their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their practice. They develop categories of cases, parties, and behavior patterns that lead them to design routine procedures and strategies for dealing with recurring challenges before, during, and after mediation sessions. The systems include unconscious routines and conscious strategies for dealing with challenging problems. Good practitioners regularly reflect on their experiences and improve their techniques.
For a thorough explanation of RPS theory, read Real Mediation Systems to Help Parties and Mediators Achieve Their Goals. It identifies problems with traditional mediation theories, argues that dispute system design theory provides a more realistic framework for analyzing mediation, outlines the rationale for RPS theory, and illustrates it by using in-depth analyses of the mediation systems of ten experienced mediators. These ten stories are fascinating, including eight from clinical faculty and two from private practitioners. Ten Real Mediation Systems is an excerpt with these stories. You might assign students to read one or more of the accounts of these mediators.
If you want to read more, check out the RPS Annotated Bibliography. The sections discuss (1) an overview of RPS theory, (2) critiques of traditional dispute resolution theories, (3) promotion of party decision-making, (4) litigation interest and risk assessment, (5) preparation for mediation sessions, (6) technology systems,
(7) planned early dispute resolution, (8) dispute system design, (9) applications in court systems, and (10) applications in legal education. Most of the entries are short blog posts and articles, though it also includes law review articles and books. There are links for the entries, so you can access them with one or two clicks. Students looking for paper topics can see if it gives them ideas that they might write about.
The RPS menu of checklists is a detailed, concrete manifestation of the theory. It is extensive but not exhaustive. Mediators must decide what to do in each moment based on the particular circumstances of each situation. Mediators wouldn’t do all of the things in the checklists in any case, but the checklists should help them decide what to do in any specific case or in their practice generally. Mediators can perform almost any of the tasks in the checklists regardless of their views about various mediation models or theories. Indeed, the olden theories relate to only a handful of elements in the checklists. Although the checklists are oriented to mediators, they should be very helpful to attorneys acting as mediation counselors and advocates.
You might assign students to read a short article, Top Ten Ways to Improve Your Mediation Skills, which includes links to a good 20-minute video and articles to help mediators understand their unique systems.
This post collects RPS teaching resources as does this one.
We properly critique the pervasive “hidden curriculum” in legal education generally, and we should reflect on our own hidden curriculum. The hidden curriculum in legal education is that lawyering is based on memorizing complex rules derived from appellate cases and applying them to acontextual fact patterns. The hidden curriculum in mediation courses is that the old concepts and theories provide a solid foundation for understanding mediation. It implies that mediators are the leading actors in a process focusing primarily on mediation sessions in which preparation is relatively unimportant. This is not what we should teach.
We don’t have enough time to teach students everything we want them to know. So we must make tough decisions about what to include and omit based on our priorities about what they should learn in the short time we have their attention.
This article provides my suggested priorities. In my view, all the topics listed in footnote 2 are important and worthy of discussion. The suggestions in this article would be higher priorities for me. You might adopt some but not necessarily all of my suggestions. If students at your school would get adequate instruction about certain topics in other courses, you might omit them from your course.
Some of suggestions involve changes that shouldn’t require much if any additional time and thus would not require you to omit material you currently teach. Others would require some additional time and thus you would have to assess the tradeoffs between including some new material and some material you now cover.
Since the 1976 Pound Conference, the dispute resolution movement has made very valuable contributions to legal practice and education. Mediation has been particularly important. Parties generally have positive responses to mediation. It’s the go-to process for most court-connected ADR. Attorneys generally appreciate it, especially when they need help settling their cases.
There has been a vibrant dispute resolution movement within the American legal academy. Practically every law school now offers at least one dispute resolution course. Many offer several courses, and some schools have robust dispute resolution centers promoting teaching, scholarship, and service as Michael Moffitt described in Islands, Vitamins, Salt, Germs: Four Visions of the Future of ADR in Law Schools.
In the past five decades, mediation practice and teaching have grown in size and sophistication. Inevitably, some ideas that made sense early in this development need revision and updating to reflect evolving realities and improved understandings. This is a moment deserving reflection about what faculty should teach about mediation in the future especially in light of the NextGen bar and changes in various states’ licensing regimes.
This article suggests significant upgrades of our mediation instruction.
Unfortunately, many attorneys still rely on the pinched “philosophical map” that Len Riskin described four decades ago. We should teach our students that many lawyers – and mediators – are from Mars and their clients are from Venus. Our students should learn to help inter-planetary communication, helping Martians understand the Venusians and vice versa. This is relevant not only to mediators but also mediation counselors and advocates. The latter should serve effectively in a mediating role. They should help their clients understand the legal and financial perspectives of the mediators and counterpart attorneys. And the clients’ intangible interests should inform their advocacy in dealing with mediators and counterpart attorneys. We should provide a better balance of instruction about mediation counseling, advocacy, and neutral services in all our mediation courses.
Considering attorneys’ and parties’ typical perspectives about mediation, we should teach students about the common configurations of participants in mediation varying depending on whether both parties are self represented, legally represented, or some combination.
Mediation is an ensemble, not a process where mediators are in leading roles and everyone else is just in supporting roles. Moreover, mediation is an extended process, not just a mediation session. Attorneys and mediators should carefully prepare parties for mediation sessions. We should give students experiences of this extended process by using multi-stage simulations, not only one-stage simulations of mediation sessions.
Real Practice System Theory is a useful framework for incorporating these ideas in our courses. The RPS checklists concisely identify a much wider range of tasks than in our texts, and the checklists should be assigned as a required reading, supplementing other texts and materials. The checklists use clear language, illustrating better ways to communicate our ideas than the confusing dispute resolution jargon we have traditionally used. The checklists also demonstrate the important role of technology throughout the mediation process, which will almost certainly increase in the future.
We can’t teach everything we want students to know about mediation. Hopefully, this article inspires you to reflect on the hidden curriculum in your courses and to prioritize your learning objectives for your students.
Appendix
Texts Relevant to Mediation Counseling and Advocacy
Harold I. Abramson, Mediation Representation: Advocating as a Problem-Solver (3d ed. 2013).
Dwight Golann, Sharing A Mediator’s Power: Effective Advocacy in Settlement (2013).
G. Nicholas Herman, Advocacy in Negotiation and Mediation: A Practical Approach (2021).
Michaela Keet, Heather Heavin & John Lande, Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions (2020).
Bennett G. Picker & Conna Weiner, Commercial Mediation Practice Guide: A Practical Handbook for Lawyers and their Business Clients (2023).
Spencer M. Punnett II, Representing Clients in Mediation (2013).
Jennifer K. Robbennolt & Jean R. Sternlight, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making (2d ed. 2021).
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