Mediation Clinic –
Law 775 – Hinshaw
office: Armstrong Hall, Room 255
phone: (480) 965-3109
Program Coordinator: Suzanne Lynn
office: Armstrong Hall, Room 265
phone: (480) 727-9331
fax: (480) 965-6839
Class will be on Mondays and Wednesdays from 8:30 – 10:25 am in Room 111. There will also be two and a half days of mandatory training sessions – Friday evening January 20, Saturday January 21, and Saturday January 28.
This course focuses on the process by which mediators assist others in resolving disputes. You will find that mediation is a burgeoning field, yet most people fail to understand that mediation is as much an art as it is a science. In this class we focus on both the art and the science of mediation. We will study the theory, strategy, skills and public policy issues involved in the mediation of disputes, and we will put our skills to work by mediating live cases in the Maricopa County Justice Courts.
Specifically our goals for you are:
Everything we do in this class, from readings to demonstrations to experiential exercises, is focused on achieving one or more of these goals.
The required textbook we will use in this course is:
Mediation: Principles and Practice,
by Kimberlee Kovack, (3rd ed., Thompson West 2004).
This book is available in the ASU bookstore.
Two helpful, but not required, books are:
Getting to Yes: Negotiating Agreement Without Giving In,
by Roger Fisher, Bill Ury and Bruce Patton, (2nd ed., Penguin 1991).
Difficult Conversations: How to Discuss What Matters Most,
by Douglass Stone, Bruce Patton and Sheila Heen, (Viking 1999)
These books are widely available in libraries, bookstores and online.
There are two sets of materials you will need to pick up in
In the many of our classes, you will be teamed with other students to do mediation role-play scenarios. Hence, your timely attendance and participation are crucial in this course. If you are absent, your absence will preclude not only your participation that day, but also that of other students. The same applies to preparation for class. If you come to class unprepared, not only will you have a poorer experience, but your fellow students will also have a lesser experience.
If you do not expect to be able to attend every class, you should not take this course. The bottom line is – attendance is required, and any absence is presumptively unexcused. That said, emergencies unfortunately do arise. If you must miss class, or if you are not prepared to participate on a particular day, you must provide me with a note or email, in advance, explaining the reasons why you are requesting an exception from the normal expectation of participation. A phone call or a conversation, while helpful in adjusting mediation groupings, is not sufficient. I will make a final decision as to whether your absence should be excused.
Lack of punctuality and lack of preparation will be taken into account in calculating class participation grades. I also reserve the right to impose other sanctions permitted by university and law school rules. For example, in the past I have given pop-quizzes on reading assignments when it became clear that no one was reading.
Remember, learning the skills we will be teaching in this course is not something that can be done “to” you or “for” you. You must work on it yourself, and what you learn in this course in large part depends on your effort.
Throughout the course, particularly earlier in the semester, you will be participating in role-play exercises as mediators or as disputing parties. Before each exercise, you will be assigned a role and given instructions about your role. The instructions are designed to be self explanatory, and may contain confidential information. Do not show or discuss your confidential information to those who have been assigned different roles before the exercise begins. Doing so will undermine the learning opportunities for yourself and your classmates.
The instructors will be sitting in on your mediations and critiquing your performance. Since there are only two instructors, we will be videotaping the exercises that we cannot sit in on.
For more specific instructions about your duties and responsibilities in role-playing, please see “General Instructions for Role-Play Scenarios” in your Clinic Notebook.
Since this is a clinical class, you are required to do work in the “real world”. To satisfy this requirement, you must participate in at least 10 mediation experiences during the semester. The breakdown is as follows:
After each mediation you are to fill out a Mediation Fieldwork Report describing the mediation you observed or conducted. A form for the Report is in your Clinic Notebook and a copy will be sent to you electronically. This form is to be completed and delivered by hand or as an email attachment to Suzy Lynn within 2 days of the mediation’s occurrence.
Suzy will keep the “official” tally of your number of field experiences, and her numbers come from these completed documents. Additionally, you should keep a Mediation Log to help you keep track of your mediations. This is especially important should your numbers differ from the official tally. At the end of the semester you will turn your log into Suzy. A form for the log is in the Clinic Notebook.
This course is graded on the following scale:
high honors, honors, pass, numeric grade (between 70 and 59), fail.
This course is considered to be a graded course for law school purposes. It does not count toward the number of pass/fail courses you may take. Note that your grade in this class will not be determined by the outcome of the mediations you conduct.
The following factors will go into your final grade:
Once we begin observing mediations, we will do case rounds where you and your classmates will report on the happenings in the mediations you are observing or conducting. For detailed instructions on presenting your case to the class, please see “Guidelines for Oral Reports on Mediation Experiences” in the Training Manual.
The class will culminate with short presentations about a specific application of mediation. Your presentation should include information gathered from an interview of someone who is involved with the particular mediation application you choose. You are free to pick any mediation context you like, but I will prepare a list of potential topics to get you started.
Presentation Dates: April 17, 19 and 24, 2006
All students who successfully complete this course will receive a certificate of completion, which will provide proof of having completed 40 hours of mediation training.
January 18 – Conflict Theory Basics
Read – Article No. 1 in the Clinic Reader
1. Leonard L. Riskin, et al, “The Nature of Conflict and Disputes” excerpt from Dispute Resolution and Lawyers, 3rd ed. (forthcoming).
January 20 and 21 – Mediation Skills Training Seminar
January 23 – Individuals and Conflict
Read – Article Nos. 2 and 3 in the Clinic Reader
2. Cloke, et al., “The Hidden Meaning of Conflict Stories,” in Resolving Personal and Organizational Conflict (1995).
3. Bernard S. Mayer, “What People Want in Conflict,” in Beyond Neutrality: Confronting the Crisis in Conflict Resolution (2004).
January 25 – Negotiation
Read – Kovach, Chpts. 8 and Article No. 4 in the Clinic Reader. Review Kovach, Chpt. 7.
4. Jay Folberg, et al., “Identifying Interests and Developing Options,” in Resolving Disputes: Theory, Practice and Law (2005).
January 28 – Mediation Skills Training Seminar
January 30 – Mediating in
February 1 – Mediator Styles
Read Article Nos. 5 through 8 in the Clinic Reader.
5. Leonard L. Riskin, “Retiring and Replacing the Grid of Mediator Orientations,” 21 Alternatives 69 (2003) and 12 Alternatives 111 (1994), excerpted in Folberg, et al., Resolving Disputes: Theory, Practice and Law (2005).
6. Gary Friedman & Jack Himmelstein, The Understanding Based Model of Mediation (2004), excerpted in Menkel-Meadow, et al., Dispute Resolution: Beyond the Adversarial Model, (2005).
7. Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation (1994),
excerpted in Menkel-Meadow, et al., Dispute Resolution: Beyond the Adversarial Model, (2005).
8. James J. Alfini, “Trashing, Bashing, and Hashing It Out: Is This the End of ‘Good Mediation’?”, 19 Fla. St. U. L.Rev. 47 (1991), excerpted in Menkel-Meadow, et al., Dispute Resolution: Beyond the Adversarial Model, 2005.
February 6 – Mediator Styles (cont.)
Read Article No. 9 in the Clinic Reader
9. Lela P. Love, “The Top Ten Reasons Why Mediators Should Not Evaluate,” 24 Fla. St. U. L.Rev. 839 (1997), excerpted in J. Alfini, et al, Mediation Theory and Practice (2001).
February 8 – Impasse Strategies
Read Article Nos. 10 and 11
10. Eric Galton, “Impasse-Breaking Techniques,” in Representing Clients in Mediation, pp. 104-112 (1995).
11. John W. Cooley, “Restructural Caucusing,” in The Mediator’s Handbook (2000).
February 13 – Finalizing a Mediation and Writing Agreements
Read – Kovach, Chpts. 12 (pp. 339 – 349) and 13 (pp. 387 – 392) and Advice re: Writing Agreements in the Training Manual
February 15 – Fish-Bowl exercises
February 20 – Fish Bowl exercises
February 22 – Power Imbalances
Read – Article No. 12 in the Clinic Reader
12. Jordi Agusti-Panareda, “Power Imbalances in Mediation: Questioning Some Common Assumptions,” May – June Dis. Res. J. 24 (2004).
February 27 – Attorneys and Mediation (meet in Room 114)
Read – Article Nos. 13 – 16 in the Clinic Reader
13. Leonard L. Riskin, “Mediation and Lawyers,” 43 Ohio St. L.J. 29 (1982), excerpted in Menkel-Meadow, et al., Dispute Resolution: Beyond the Adversarial Model, (2005).
14. Helaine S. Golann and Dwight Golann, “Why Is It Hard for Lawyers to Deal With Emotional Issues?”, 9 Disp. Res. Mag. 26 (Winter 2003), excerpted in Folberg, et al., Resolving Disputes: Theory, Practice and Law (2005).
15. Jay Folberg, et al., “Managing Positional Bargaining,” in Resolving Disputes: Theory, Practice and Law (2005).
16. J. Michael Keating, “Mediating the Dance for Dollars,” 14 Alternatives 71 (1996), excerpted in Folberg, et al., Resolving Disputes: Theory, Practice and Law (2005).
March 1 - Skills Review
March 6 – Case Rounds
March 8 – Ethics
Read – Kovach, Chpt. 14 (pp. 395-404, 413-418) and review Appendix B (Joint Model Standards of Conduct for Mediators). Also, review Article Nos. 17 and 18 in the Clinic Reader
17. Paul Rubin,
Dr. Buzzard: Mediator Gary Karpin Preyed on Vulnerable Divorcees,
18. In Re
March 13 and 15 – Spring Break – No Class !!
March 20 – Case Rounds
March 22 – Confidentiality
Read – Kovach Chpt. 11 (pp. 263-276, 299-310, 317-326) and Article 19 in the Clinic Reader
19. Olam v. Congress Mtge. Co., 68 F. Supp. 2d 1110 (N.D. Cal. 1999), excerpted in Menkel-Meadow, et al., Dispute Resolution: Beyond the Adversarial Model, 2005.
March 27 – Case Rounds
March 29 – Settlement
Read – Article Nos. 20 and 21 in the reader
20. Owen Fiss, “Against Settlement,” 93 Yale L.J. 1073 (1984), excerpted in Riskin & Westbrook, Dispute Resolution and Lawyers, 2nd ed. 1998
21. Carrie Menkel-Meadow, “Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases)”, 83 Geo.L.J. 2663, 2663-71, 2692, excerpted in Riskin & Westbrook, Dispute Resolution and Lawyers, 2nd ed. 1998
April 3 – Case Rounds
April 5 – No Class
April 10 – Case Rounds
April 12 – No Class
April 17 – Presentations
April 19 – Presentations
April 24 – Presentations
and Moving Forward
Copyright 2006 Art Hinshaw. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.