Share |

Dean's Column: Finishing School

Embedded Scribd iPaper - Requires Javascript and Flash Player

46 Nevada Lawyer November 2012
STATE BAR OF NEVADA Nevada Lawyer Magazine
Dean’s Column
fiNisHiNG scHooL
“Each week mediators must meet, greet and try to
cultivate a speedy rapport with two people who are
usually pretty angry with each other, while
maintaining their equilibrium during the
entire three- to four-hour session. ”
I am often asked by potential students about the
benefts of participating in the Strasser Mediation
Clinic for future lawyers. This is an eminently sensible
question, considering that most of my students will not
be mediators, so let me articulate what I believe the
advantages are for attorneys-in-training.
The frst thing students begin to develop while in the
mediation clinic is a comfort in dealing with complete
strangers. Each week mediators must meet, greet and try
to cultivate a speedy rapport with two people who are
usually pretty angry with each other, while maintaining
their equilibrium during the entire three- to four-hour
session. Invariably, students report in their weekly
journals that they were nervous or had butterfies in their
stomachs upon meeting the parties involved in their frst
few mediations, even though experienced mentors were at
the table with them. This stage fright is perfectly normal
for law students used to spending most of their time with
appellate cases and rulebooks. By the end of the clinic,
13 weeks later, those butterfies have disappeared, and
students report they have banished those initial fears.
Of course, a key factor when it comes to losing those
fears is developing confdence. Make no mistake, this
is a daunting task for students. These 20- and 23-year-
old students may be sitting at a table trying to help an
elderly couple end a marriage, or trying to calm a furious
driver who is spewing invective at an insurance company
representative. Students wonder why these people (often
their elders) would even deign to listen to what they have
to say.
But they do listen. And that is the magical part,
because as students learn to trust the process of
mediation, they begin to exude competence. They forget
that they’re students, or young or inexperienced; they
take on the role of mediator completely. Questioning
skills improve dramatically – an essential ability because the
clinic provides facilitative mediation services and students
may not give advice. Instead, they must elicit information and
proposals from the parties by asking probing questions, and they
must help these people use that information to reach a creative
solution to the dispute.
This is a real-world version of issue spotting. People in the
middle of a dispute can be highly voluble, but much of what is
said is posturing and venting. Hidden within those fulminations
are the inchoate proposals that could, with proper handling, be
converted into creative solutions to the dispute. The student
mediators learn how to tease these out. No lawyer should be
without this skill.
There are, of course, times when the questioning needs
to be incisive (read: “tough”) in order to penetrate the barriers
which are erected by involved parties and preventing resolution.
This can be diffcult for students. They feel they might “step
over the line,” wherever that line may lie, but they are also
learning to speak in nonjudgmental language, which allows
them to communicate some pretty diffcult things in the nicest
possible way, so that no one is offended.
Students do all of this within the short time period of four
hours. This means that, while probing the origins of the dispute
and helping the parties see areas where they can agree or make
trades, students must also keep track of time. Maintaining an
appropriate pace while working through an agenda is the key
to running a good meeting, an invaluable skill for any future
lawyer and exactly what is required of student mediators.
About half the cases in the Mediation Clinic involve
representation, and having lawyers present is frequently an
eye-opener for students. Many attorneys are incredibly helpful
in pointing out what resolutions would not only be good
for their clients but also for their opponents. They can also
offer predictions of what might happen at trial or give their
interpretations of the applicable laws. Sometimes, counsel is
November 2012 Nevada Lawyer 47
Designed for you and your practice.
Contact a JURIS Banker
Bank of Nevada is an affliate of Western Alliance Bancorporation
Forward Together.

º ßanking Ieader for tbe IegaI profession
º 5peciaIized knowIedge of professionaI & practice needs
º OfñciaI bank of CIark County ßar Association
º Participating IOLTA FinanciaI Institution
gracious enough to share information of
which an unrepresented adversary was
unaware, helping to lead to settlement.
But there are also times when bad
lawyering is evident and students are
quick to see it. Perhaps the attorney
is unprepared or is giving what is
clearly wrong information (based on
cases they’ve already done); possibly
a counselor is not interested in helping
her/his client reach resolution in
mediation. These experiences are
invaluable, too. Students begin to
realize that, as in all professions, there
are good practitioners and bad.
Most importantly, in the Strasser
Mediation Clinic, law students work
with both sides in a dispute. They learn
that disputes are the result of choices
and actions (or inactions) on both
disputants’ parts, that emotions must
be considered because they often drive
the dispute, that truth is rarely clear
and that the application of the law
sometimes becomes an impediment to
what the parties truly want.
ProfeSSor rAyMoND W.
PAtterSoN Joined the William S.
Boyd School of Law in 2005. Before
coming to Nevada, Professor Patterson
was the director of mediation for
New York City’s Civilian Complaint
Review Board (CCRB), a mayoral
agency that handles complaints by
civilians against police officers. He
implemented and supervised the
CCRB’s mediation program. He was an
original member of the City University
of New York’s Dispute Resolution
Consortium Advisory Panel and an
adjunct professor at both the Benjamin
N. Cardozo School of Law and NYU’s
School of Continuing and Professional
CorreCtIoN: The Dean’s Column
in the September issue of the Nevada
Lawyer incorrectly identified Professor
Anne Traum as a current appellate lawyer
representative to the Ninth Circuit Court
of Appeals. Traum served as an appellate
lawyer representative from 2009 through
2011. In addition to founding and directing
the Appellate Clinic at the William S. Boyd
School of Law, Traum teaches criminal
procedure and federal courts.

Published under a Creative Commons License By attribution, non-commercial
NevLawyer_Nov_2012_Dean's_Column.pdf1.47 MB