Aspiring litigators learn early on that it is their duty to zealously advocate for their clients, regardless of whether their clients’ particular aims seem likely to engender more harmony in the universe. Practice Professor Douglas Frenkel L’72, who teaches the Mediation Clinic at the University of Pennsylvania Carey Law School with Adjunct Professor of Law Michele Goldfarb and Lecturer in Law Sharon Eckstein L’86, believes it is just as important for law students to learn the art of “perspective-taking,” the ability to understand a situation from multiple points of view.
“While all lawyers would benefit from developing this aptitude,” said Frenkel, “it is one often lacking in lawyers whose thinking is easily skewed by having partisan loyalties, advocacy goals, and ethical duties.”
Mediation Clinic skills
Mediation Clinic students learn to exercise unbiased lawyering judgment by facilitating real mediation sessions which, like other forms of alternative dispute resolution (ADR), are becoming prevalent in situations where litigation might be seen as unaffordable, inefficient, or simply inappropriate.
“In the Mediation Clinic, we worked on skills that will help us in practice and in life,” said clinic alum Casey Stewart L’21. “We focused on active listening and other ways to delve beneath the surface of what parties say they want to help uncover what they actually want out of a dispute.”
By making manifest the unstated emotional, cultural, or values-based underpinnings of a dispute, skilled mediators can help clients resolve issues that may matter more to them than their legal entitlements.
Clinic alum Eric Stahler L’20 recalled one highly sensitive mediation, for example, where he learned half-way through the session that one of the parties had received a racist message from the other party a few weeks prior.
“It was a challenging situation to navigate for many reasons,” Stahler said. “The message was revolting and made it tough to maintain our neutrality as mediators. It also complicated the dispute as it became clear that the message, and not the legal dispute, was the real issue between the parties. After much back and forth, we were eventually able to help the parties reach a resolution. It was rewarding to be able to help the parties work though these multiple layers of conflict, especially because I felt we were able to provide the party who had received the message with a safe environment to express their hurt and frustration.”
The increasing value of mediation
“Civil disputes are increasingly being resolved in mediation rooms rather than in courtrooms,” and for good reason, said Frenkel. “Mediation offers significant benefits for disputants, the justice system, and the community at large,” he said. “It can allow honest, but safe, confrontation and discussion of difficult subjects that can yield both interpersonal understanding and the enhanced ability to navigate and resolve future conflicts — both of which are currently in short supply in our society. Mediation empowers parties to solve a problem on terms that they devise, rather than having an outcome imposed on them by a court that is limited by the remedies that law can provide. And research shows that outcomes reached through voluntary agreement are more likely to be complied with than are results that are imposed by a tribunal.”
Frenkel also stressed that mediation “is a process that can spare people the human and transactional costs as well as the future uncertainty of a prolonged conflict.”
Stewart particularly liked that she could see her mediations having an immediate impact on parties.
“Settlements and agreements happened in real time, and in a few instances I was able to resolve disputes that same day,” she said.
In a system in which most civil litigants lack representation, mediation also gives under-resourced parties a more meaningful opportunity to be heard.
“In many cases I handled, one or both parties were unrepresented,” said Stewart. “Sometimes the parties had been navigating the overburdened legal system for years. I, on the other hand, only ever had one mediation per day, so I was able to let everyone express their concerns and leave feeling as though they had been fully understood. The Mediation Clinic, at its best, provides parties with a sense of procedural justice they may not have experienced before.”
Types of cases in the Mediation Clinic
Through the clinic’s partnerships with Philadelphia’s Human Rights Commission, Family Court, and the Court of Common Pleas’ Arbitration Center, students become familiar with a range of settings for ADR.
“It’s rare to be exposed to so many tribunals in so short a time,” said Stewart.
Clinic students work with businesses to mediate commercial disputes as well as with individuals negotiating more personal, and often more personally-affecting conflicts.
“The most meaningful cases for me were the custody disputes we handled at Family Court,” said clinic alum Blake Pittell L’21. “These disputes were challenging, because at times they would become highly emotional, but helping parents work together to create a better life for their children had a strong impact on me.”
Domestic relations matters may be especially well-suited to mediation, Frenkel noted, as “relationships can be salvaged or rebuilt instead of being torn apart by adversary battle.”
Life-long lessons of Mediation Clinic experiences
Frenkel hopes that clinic students “develop the lasting sense that lawyers can be problem-solvers as well as warriors.”
Law students become “front-line mediators” and have the opportunity “to make a huge difference in the lives of people who have been unable to resolve a conflict or even talk about it,” added Frenkel. “History tells us that many students will successfully bring the skills acquired in the clinic to their professional roles as litigators, as in-house counsel dealing with conflicting elements within an entity, to doing pro bono mediation as part of a traditional career, and even as professional mediators.”
Stahler said he is “confident that the skills I learned in the clinic will help me better resolve conflicts for my clients.” Pittell agreed, and said that the clinic has even encouraged him “to pursue a career in mediation, arbitration, and other types of ADR.”
For Stewart, the most significant thing she learned in the Mediation Clinic was something about herself.
“While I will take many of the clinic’s lessons into my practice — how to work with a partner, how to broaden a negotiation to find better solutions — I keep returning to the importance of procedural justice. The Mediation Clinic helped me realize how important it is to me that everyone be heard in our country’s legal system. This conviction gives me something to fight for throughout my career, wherever it takes me.”
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