Legal Ed's Futures: No. 25 (guest post, Brian Farkas)

Syllabus Surgery: Integrating Arbitration and Mediation into Modern Curricula

The contributors to this excellent symposium on the Future of Legal Education have proposed large-scale changes to the ways that law schools are organized and the ways that law schools teach. My suggestion is more humble: Schools must do a better job of reflecting the dramatically heightened place of arbitration and mediation in modern legal practice.

Arbitration and mediation have traditionally been viewed as elective courses. Sometimes they are lumped together into a single course, called something like Alternative Dispute Resolution or ADR. The “alternative” moniker implies that these methods of conflict resolution stand in contrast to litigation, or somehow involve different types of disputes than the disputes that are litigated. Most curricula view them as optional complements to the “real” litigation courses like Civil Procedure, Evidence, Federal Courts, Conflict of Laws, and Remedies.

Anyone who has ever litigated knows that this is a fundamentally false framing. First, mediation and arbitration are no longer “alternatives.” They’ve been mainstreamed over the past several decades. And while frequency varies by practice area, most litigators are likely to spend a substantial amount of their time in non-judicial fora. Second, these processes can’t be lumped together into a single unit or class on “ADR.” They’re entirely distinct processes that are used for different reasons.

Let’s start with frequency. Mediation now occurs in almost every litigated commercial case as well as many non-commercial cases. Courts increasingly require it, and parties (including insurance companies) welcome it. It is a well-known statistic that some 95-98% of cases settle before trial, and many of those settlements occur via mediation. Arbitration, by contrast, generally occurs when the parties have a pre-dispute arbitration clause in their contract, or a post-dispute arbitration agreement. All data suggest that the number of arbitration filings continues to increase over time. The reasons for arbitration’s popularity include its relative speed, cost, and finality. Companies are increasingly placing binding arbitration clauses into consumer and employee contracts (and, for better or worse, courts largely uphold such clauses). Simply put, mediation and arbitration are central parts of our modern legal system.

Yet traditional doctrinal courses spend the vast majority of their time – maybe all of their time – on issues arising under the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Schools have countless trial advocacy classes, appellate boot camps, and moot court teams to reinforce courtroom advocacy skills.

But where do students learn about effective representation of clients in mediation? Where do students learn to write a pre-mediation statement to frame issues effectively for the mediator? Where do students learn the procedural rules that govern arbitration? Where do students learn how to present a case in arbitration? Where do students discuss the ethical boundaries within ADR procedures? Where do students learn to advise clients on which type of dispute resolution might be most appropriate? Unless the students take an elective course, the answer to these questions is often “never.”

Admittedly, not every law school has the resources to offer (much less require) separate two-or-three credit discrete courses on Arbitration and Mediation. Several years ago, I explored these ideas at greater length with my Cardozo Law School colleague, Lela P. Love (see, Silver Linings: Reimagining the Role of ADR Education in the Wake of the Great Recession, 6 Ne. U. L.J. 221 (2013)). The financial crisis – and law school budget cuts – formed the backdrop for that article, which suggested that the Great Recession offered an opportunity to integrate ADR into doctrinal courses more intentionally. 

So, here is my modest proposal: Traditional doctrinal courses need to integrate arbitration and mediation, so that students understand how these increasingly prevalent processes fit into lawyering. A Civil Procedure course should discuss court requirements for good faith mediation. An Evidence course should discuss arbitrators’ ability (and tendency) to limit pre-hearing discovery and set aside traditional evidentiary requirements. A Federal Courts course should discuss the procedural motions that are commonly made with respect to arbitration – motions to compel or stay arbitration, motions to confirm awards, and motions to vacate awards.

The traditional 1L “Legal Writing and Lawyering Skills” course should be broadened to reflect that litigation lives alongside mediation and arbitration. Many creative legal writing professors already introduce some elements of negotiation and demand-letter writing into the curriculum. But process choice should also be introduced from the beginning in a more holistic manner.

In the 21^st century, does any litigator really believe that arbitration and mediation are “elective” skills? Litigators don’t advocate exclusively, or even predominantly, in trial courts. Yet most law schools continue to treat arbitration and mediation as “alternative” models of lawyering – cool electives to be taken if one has the time. In fact, familiarity with these modes of conflict resolution is now essential. As we think about the Future of Legal Education, our syllabi might need some surgery to reflect this reality.

Brian Farkas (Cardozo, Adjunct Prof.)