And one question circulating the competition resonated with me. Where do young, newly minted lawyers who are trained in and want to practice mediation fit into the current mediation system? In other words, why is it difficult for new lawyers and professionals to mediate and where can we get experience?
The answer to the former question is straightforward. Law students and new lawyers simply lack real world legal experience that mediation participants expect in a mediator. According to the American Arbitration Association, who is going to mediate a dispute is the “single most important question that parties ask once they have agreed to mediate” and the AAA caters to that demand by requiring a minimum of ten years of senior-level experience to qualify as a mediator. AAA also requires education and mediator training and experience to qualify a person as a neutral.
While students and new lawyers likely don’t meet the requisite standard for senior-level experience, many of us - through the mediation programs and clinics that law schools offer today - do meet the educational and mediator training and experience requirements. At the ICC competition, for example, transformative mediation and facilitative mediators were the norm, rather than the exception when competitors trudged through mucky commercial disputes. Relationship building and collaboration guided the process of constructing mutually beneficial solutions to problems. Even the unconventional client-to-client caucus was a commonly applied technique. These examples support my contention that mediation education students receive in law school - both domestically and abroad - is seeping swiftly into practice, at least at the moot level.
Law Schools across the country are creating Mediation Clinics, externship programs and Mediation certificates for graduates. Schools are also offering an LLM in Alternative Dispute Resolution. The opportunities for students to learn mediation is expanding and many students are taking advantage of these programs and leaving law school trained in mediation scholarship and practice. It appears to me that, while law students and new mediators may lack the formal legal experience the mediation community has come to expect, we are rapidly acquiring the skills and techniques necessary to be effective mediators.
I circle back to the latter, more difficult question. How do educated, experienced mediation students create opportunities to continue honing those skills in practice?
From my experience and the feedback I’ve received, the most important characteristic a new mediator must have is being self-motivated. It is unlikely, if not impossible, that an individual’s law firm, agency or office is going to hand you disputes to mediate.
I was having dinner a few nights ago with Robert E. Margulies, Esq. of Margulies Wind, P.C. and past President of the Justice Marie L. Garibaldi Inn of Courts for ADR. Bob told me that “curiosity” and self-motivation were two of the most important traits a new lawyer should have, especially when there is an area of practice that interests him or her. His advice made sense and got me thinking about how to put my motivation and curiosity into action.
One way to tap into the pool of experience is through your state’s Office of the Attorney General. My first mediation experience was a product of a mediation course and externship at Rutgers Law School. I spent ten weeks at the New Jersey OGA Division of Consumer Affairs ADR Unit as a mediator resolving consumer/business disputes. While the NJ program offers mediation primarily over the telephone, other states may offer different services. Most importantly, all of these programs are in need of qualified volunteers. The Federal Trade Commission website provides information about finding mediation programs in your state. Volunteering or doing pro bono work in a state ADR program can expose new mediators to a range of disputes and gives back to the community at the same time.
Another way to get experience is volunteering through your state court system. In New Jersey, for example, the State court civil division offers mediation services for parties as well as programs and mentorship to its mediators. Other states have similar programs that can be found by searching the state court websites. In an economy where legal jobs have been shed or deferred, these volunteer options keep attorneys honing skills, expanding their range of experience and contributing to the community.
For current law students, participating in Mediation moot competitions is an excellent way to get experience and network with your peers and mentors in mediation. The ABA sponsors an annual Representation in Mediation Competition and the ICC sponsors both the aforementioned mediation competition as well as an international arbitration competition. If mediation competitions are not already incorporated into your school’s mediation programs or budgets, petition the program chair, the SBA and the administration for support. Be self-motivated!
These opportunities highlight some of the ways students and new mediators can expand their mediation knowledge and training into practice. In addition to programs and competitions, seek out opportunities within your own law firm, agency or department to observe mediations conducted by senior associates and partners.
Ultimately, our growth in this profession depends on being self-motivated and willing to get experience in a variety of ways. Experienced mediators are enthusiastic about becoming mentors, but it is our responsibility to seek them out and get involved.