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Douglas Frenkel L’72 travels the world to speak about mediation

December 21, 2015

Professor Douglas Frenkel L'72 is an expert on mediation and has traveled the world discussing the American approaches to dispute resolution.
Professor Douglas Frenkel L'72 is an expert on mediation and has traveled the world discussing the American approaches to dispute resolution.
Douglas Frenkel L’72 traveled around the world speaking about the American system of alternative dispute resolution and the work he has done in Penn Law’s clinics.

This past year, Douglas Frenkel L’72 has traveled around the world speaking about the American system of alternative dispute resolution. Frenkel is the Morris Shuster Practice Professor of Law and the architect of Penn Law’s nationally renowned clinical program. He served as Director of the Gittis Center for Clinical Legal Studies from 1980 to 2008.

Frenkel is an expert in alternative dispute resolution, in particular mediation. Penn Law sat down with him to discuss how different countries are looking to the United States for new information in examining their legal systems.

Penn Law: Could you describe what you’ve been speaking about at the various institutions you’ve been visiting?

Douglas Frenkel: Although I traveled to three very different settings, all of them had something in common. They wanted to learn from the American experience in dispute resolution, especially the development of alternative approaches to handling or teaching about conflict.

It’s become pretty common to get inquiries from other countries trying to address and manage both court-based and other kinds of conflict in ways that are less taxing or more satisfying to participants in the system, or that address internal organizational or inter-cultural conflicts. Some want to reform the ways that they train lawyers. And they want to learn from a country like the United States, which they perceive to be a generation ahead.

At the end of last year, I went to England, where I’m a member of the advisory board of Canterbury Christ Church University’s Mediation Clinic. As a school that wants to infuse conflict resolution into its curriculum, one of their faculty members spent the better part of a semester here at Penn Law, studying what we do in our mediation course.

Following a meeting of that advisory board in December 2014, the university hosted a conference, which attracted a large number of judges, lawyers, police officials, students and members of the community from that area of England. I gave the keynote address that opened the conference, speaking on the American experience with mandating mediation — of compelling people to meet with and talk to each other as a prerequisite to being able to seek recourse in the courts or arbitration.

Compulsory mediation is now being introduced in Europe, and is being met by resistance in a number of countries. (Unlike our country, the imposition of a mediation requirement in EU states would require legislation — not merely court action. And nations with civil law systems tend not to labor under the same court backlog pressures as common law countries.)  But mandatory mediation is an approach that we have been using in the United States with considerable success for a good number of years at almost every level of court, and which private interests are increasingly adopting through contracts that require them to attempt mediation before anyone can sue.

PL: What other countries did you visit?

DF: In February of this year I was in Delhi at an Asia-Pacific mediation “summit” — a conference of hundreds of participants from not only India and the U.S. but also Singapore, China, Indonesia and a number of other Asian countries. It was very much a comparative conference, and the part in which I participated was focused on skills development.

There is a good deal of interest in the American model of mediation skills training — both for law students and professional mediators — something I’ve been doing for a long time. The panels on which I spoke or otherwise took part included people from India and other countries, and were very much a cross-cultural dialog. While they wanted to learn from the American experience, I took a great deal from the conference that has since informed my teaching.

PL: I understand you also went to Iceland.

DF: I was there in November. I was invited to give the keynote address at the 10th anniversary meeting of Sapp, the Icelandic Mediation Association. Mediation is really in its infancy in Iceland. Nonetheless, there is a very well organized and very interesting group of would-be and active mediators from a variety of disciplines, not just law, who formed this organization.

This conference, sponsored by and held at the largest bank in Iceland, was designed to reach the business community as potential users. It attracted an audience of over 100 people, which was a large turnout for a country that only has 360,000 people total and a subject which is really not well known. There were HR people, lawyers, psychologists, academics and clergy there. It reminded me, in many ways, of an audience I might have spoken to 25 years ago in the United States who had heard about this, but didn’t know how to get immersed in it.

I spoke on the American experience in using mediation in a business context, both externally in terms of disputes between companies, with customers, and the like and internally — what corporations and other organizations do to manage workplace and other internal conflict. I shared some of the survey research that has been done on the American experience, and, since returning home been asked follow-up questions by attendees who wanted to learn more. In Reykjavik, I also gave an interview to their leading business newspaper.

PL: What are some of your impressions from your travels?

DF: I think there is a hunger to figure out how conflict — ranging from problems of community violence on one hand, to corporate disputes and problems at the workplace on the other, and everything in between — can be handled in a way that hasn’t been thought about before and to understand what models might work in a particular culture.

These were three different kinds of settings: an academic program, a professional conference, and a start-up movement. Most of the host countries were familiar with mediation in relational settings such as family law or labor problems, but are looking for new approaches beyond that.

Whether it’s because courts seek greater efficiency, because people lack access to lawyers, because of the limited remedies that judges can dispense, or because educators are seeking new ways to train students, the American experience with mediation is a topic of great interest — not necessarily to import wholesale, but to learn about.