Brian Farkas has been deeply involved in our field since he was a student at Cardozo, where he was the editor-in-chief of the Cardozo Journal of Conflict Resolution. He is an attorney at ArentFox Schiff LLP, a prolific author and speaker, and a regular adjunct professor at Cardozo.
He is one of the people who responded to my request for people to describe how the Real Practice System checklists can be helpful. I said that people could write as little as a paragraph, and a bunch of people have done so. Brian wrote a longer response, which he agreed to let me post separate from the summary that I plan to write based on the various responses I get. So here’s his take.
Among the perennial topics of discussion among scholars is whether “alternative dispute resolution” belongs in the law school curriculum. Is it even law? Or something closer to psychology, business, or peacemaking?
Of course, ADR is “both/and,” evading any easy categorization. Negotiation and mediation, in particular, involve concepts that aren’t really “law” in the snooty doctrinal sense. Emotions! Listening! Creativity! Professor Kingsfield’s nightmare. I believe – as most ADR teachers do – that negotiators can only be effective if they focus on these non-legal issues to resolve disputes. Many ADR courses lean into the fact that they are “not law.”
At the same time, however, I’ve always had a nagging feeling that ADR may actually embrace its “non-legal” nature too much. Most law students will become practicing lawyers. There are all sorts of practical considerations that go into resolving disputes that actually are “legal.” Academic theories about conflict styles (for example) are great fodder for class discussion. But they don’t teach a litigator how to write an effective pre-mediation-session brief, deal with your client’s insurer, or research jury verdicts.
One practical topic that is dramatically undervalued in law school curricula is settlement. We know that the great majority of civil disputes settle before trial. But oddly, this fact is barely mentioned in most civil procedure courses. Most students graduate without ever seeing a settlement agreement – even though that’s arguably the most important and most inevitable document in any legal dispute.
With these thoughts in mind, I created a brand new course at Cardozo School of Law this semester: The Law of Settlement. This course is part of Cardozo’s Kukin Program for Conflict Resolution, which offers wide-ranging ADR courses, programming, and extracurriculars. Like any new class, it was a bit of a gamble. And here I must thank Professors Andrea Schneider and Robyn Weinstein for allowing me to take this chance. This course covers case settlement from soup to nuts. When do cases settle? Why do they settle? How are settlements negotiated? Maybe most importantly, we cover the detailed mechanics of drafting settlement agreements.
As with many transactional tasks, checklists are essential when writing settlement agreements. There are countless possible provisions that could be included in a settlement. Some are almost always included; some are sometimes included; and others are rarely included. But the sheer number of possible topics and clauses make it virtually impossible for any lawyer to sit down with a blank Word document and begin drafting. You’ll forget something. So my course included detailed sample checklists.
Naturally, though, checklists are merely the beginning of the drafting process, not the end. To craft a truly great settlement agreement – one that will be clear, effective, and enforceable – you can’t simply copy-and-paste from a list. You need to know the facts, the personalities, and the risks on all sides. And then you need to carefully consider the items on the checklist, including model clauses, and decide whether to include, strike, or nuance them in some way. It’s this aspect of drafting that can separate boilerplate mediocrity from exceptional craftsmanship.
Of course, lawyers can draft agreements only after reaching agreements, which is a complicated task in itself. The Real Practice System checklists provide very helpful reminders of things to consider in mediating. Although they are oriented to mediators, these checklists provide helpful ideas for lawyers to consider when representing clients in mediation and negotiating directly with the other side.
My experience teaching this new course has only reaffirmed my belief that ADR belongs at the heart of law school curricula. It has also reaffirmed the usefulness, and limits, of checklists as tools for teaching and lawyering. When I teach this course again, I will include the RPS checklists or some variation to help students consider how to negotiate the best possible agreements for their clients.