Learning from Law Firms: Using Co-Mediation to Train New Mediators

Article excerpt

The law firm model for training new lawyers works well for training new mediators and should permit the parties in mediation to achieve significant benefits.

The teaching of alternative dispute resolution as a discipline is flourishing in law schools. The 2003 Directory of Law School Dispute Resolution Courses and Programs, published by the American Bar Association's Section of Dispute Resolution, lists just under 900 courses at nearly 200 law schools. Over 40 of these had an ADR clinic of one kind or another.2 Some law schools have institutes that also provide training in dispute resolution theory and skills to lawyers and other professionals; some offer certificate programs, advanced degrees and CLE (continuing legal education) credit.3

Frank Sanders of Harvard law School noted that only 25 years ago, "the only curricular offerings related to any dispute resolution process other than litigation tended to deal solely with arbitration, and those were often limited to labor arbitration."4 We have come a long way since then.

However, for the same reasons that taking law school courses do not make a law student into a lawyer, the study of ADR as a law school discipline, even to the extent that it includes a clinical component, does not make a law student a mediator.

Few, if any, clients would want their case to be handled by a lawyer who just graduated from law school (as few would want a newly minted doctor to perform surgery on them). Clients want good judgment from their lawyers, and that comes with time and experience. Similarly, few parties would trust their dispute to be mediated by a person with little or no mediation experience.

In traditional areas of law practice, law school graduates gain practical know-how that gives texture to a legal education by becoming associated with other lawyers in the practice of law. The law has a long-honored tradition of experienced lawyers training new members of the bar in the practice of the law (as opposed to training them to pass a bar exam to obtain a license to practice). More young lawyers choose private practice for their initial employment after law school,5 where they can develop experience and learn from the experience and perspective of senior lawyers. This is particularly true of the large law firm.

One of the advantages of a large law-firm practice is that it exposes new lawyers to the art of lawyering. The teaching process usually begins with a legal research and writing assignment, which involves issue-identification and skills that are not far from those learned in law school. It progresses to document-handling (performing due diligence in the case of the corporate associate or discovery for the litigator), and developing proficiency in drafting documents. Somewhere along the line, the young lawyer is exposed to clients, opposing counsel and then, for those with a litigation practice, judges. In the best of circumstances, a senior associate or partner is there at every stage to counsel, teach, mold, correct and encourage.

In the world of ADR, however, there is no parallel model for training mediators. Most lawyers seeking a private mediator turn to the deans of the bar, people with a reputation for fair-mindedness and wisdom. They would never think of placing their clients in an ADR process administered by a novice lawyer, even one who has taken ADR courses in law school. Most court-annexed mediation programs likewise put a premium on time at the bar; many require 10 or more years of practice and mediation training before accepting a candidate for listing as a neutral for a court-mandated ADR program.

When it comes to mediators, traditional avenues of training lawyers in law firms-namely through working under the supervision of senior attorneys-are not part of the law firm experience.6 Service as a mediator is predominantly a one-person show. For the most part, a single mediator facilitates negotiations between parties. …