At this year’s AALS ADR Section WIP Conference, I presented data showing that more than 90% of law school mediation courses and more than 90% of the coverage in popular mediation texts focus on the mediator’s role.  I asked people what they think the emphasis generally should be in generic mediation courses, and here are the responses.

• Mostly neutral, representation secondary – 11 (55%)
• Mostly representation, neutral secondary – 4 (20%)
• Equal neutral and representation – 5 (25%)

As you can see, slightly more than half of the people responding favor continuing the emphasis on the neutral role (though not necessarily as much as 90%) – and almost half said that mediation courses should focus on representation as much or more than the neutral role.

Reflecting on the discussion at the conference, I wrote two pieces that you probably will want to read if you will teach mediation (or other DR courses) next year.

In Creating Educational Value by Teaching Law Students to be Quasi-Mediators, I argued that mediation courses should provide balanced instruction of the roles of both mediators and attorneys by teaching students how to function as “quasi-mediators” when representing clients in mediation.

In some mediations, attorneys look for opportunities to reach reasonable agreements whenever appropriate, and they use mediation techniques to move the process in that direction.  They promote agreements that satisfy their clients’ interests and that all parties would accept.  They help their clients realistically understand the other side’s perspectives, and they enlist the mediators’ help and encourage the other side to adjust their positions.

Attorneys who sometimes act as quasi-mediators in mediation don’t do so in every case.  If the other side is acting badly and taking unreasonable positions, these attorneys vigorously advocate their clients’ interests.  They presumably tailor their techniques to their clients’ preferences and the other side’s approach.  Another term for attorneys acting as quasi-mediators is “good lawyering.”

This article suggests, counterintuitively, that we actually can increase instruction in mediation skills by combining instruction in neutral and representative roles in mediation courses.

To illustrate this approach, I developed this Model Mediation Course Syllabus with Teaching Notes.  It discusses the roles of attorneys, mediators, and parties;  procedures before and during mediation sessions;  and the use of technology in mediation.  It suggests simulations to illustrate the teaching objectives.  It includes links to short readings for students available for free on the internet, including some that are highly recommended and can easily be included in any course.

This model syllabus is not comprehensive.  Rather, it sketches an overall framework that you can adapt and select from a menu of topics, readings, and simulations.  You can make adjustments about the topics covered and the amount of time devoted to particular topics.  You can continue using syllabi and readings from a prior semester and add specific elements and readings from this model. The syllabus is designed for simulation courses but can be modified for clinical courses.

Some material in the syllabus would be valuable for other DR courses including ADR survey, lawyering, interviewing and counseling, and negotiation courses.

Take a look.

If you plan to incorporate some or all of these ideas in your course, I would love to hear about it.  And if you would like to discuss how you might structure your course, I would be happy to chat by email or zoom.