It’s not breaking news that law school graduates generally have difficulty working with clients, don’t understand the “big picture” of client matters, and aren’t well trained in negotiation.
The problem for law students and law schools is exacerbated by the transition to the NextGen bar exam and a movement in various states to use alternative mechanisms for licensing that would require demonstration of practical skills.
I just wrote two short articles addressing these challenges.
One is a 5-page article recommending that law schools teach courses in strategic case evaluation and management. The article identifies topics that such courses can include, describes how these courses can be integrated in law schools’ curricula, and suggests ways to staff these courses.
The other is a 6-page article recommending that law schools offer mediation counseling and advocacy clinics and externship courses to assist self-represented litigants in cases with legally-represented parties. This would address the imbalance reflected in the fact that more than 90% of mediation clinic courses teach students to provide only services as mediators.
The recommended mediation counseling and advocacy course would prepare law students to practice in the modern world. They would work with real clients, conduct interviews, help clients assess their goals and interests, analyze claims, perform legal research, prepare documents, coordinate with mediators, and negotiate with counterpart attorneys. Some clinics, like the University of Baltimore clinic, could provide opportunities for students to serve both as counselors and advocates in some cases and mediators in other cases.
Take a look.
These are very important and welcome suggestions, John. I especially agree with you on the advocacy/counseling point. I think the focus of many mediation courses in US law schools, which is to teach students to be the mediator rather than an advocate in mediation, is misguided, and this is especially true in the clinical context. My own experience from having had discussions about this at my own law school is that faculty tend to view mediation advocacy as just another form or trial or pretrial advocacy that doesn’t need a separate course. That is, if we want to offer students a true alternative to adversarial litigation, the best way to do that is to teach them how to be a neutral mediator. The reality, of course, is that effective mediation advocacy is a completely different skill set and mindset. I hope your work will inspire broader reflection and discussion about this important topic.
Thanks very much for your encouraging comments, Hiro.
I agree that there are three distinct perspectives involved in neutral mediation work, mediation counseling and advocacy, and pretrial practice generally. And that law schools should focus much more on the mediation counseling-advocacy role than they currently do.
It is important to teach students the neutral perspective, which can help them counteract partisan biases, as Jim Stark and Doug Frenkel (among others) have shown. But the neutral role embodies its own biases (including but not limited to various mediation models and philosophies). And over-emphasizing it teaches students the wrong lesson in my view.
I think we would do better to include all three perspectives – counseling, advocacy, and neutral – in most mediation simulation and clinic courses.
Change is hard. Our field has a strong bias favoring the neutral perspective. Hopefully conversations like this will prompt colleagues to consider adjusting their approaches.
I am working on more pieces about this. Watch this space.