As we wait to hear whether the ABA will adopt the proposed change to Standard 304(b), below is the Section’s letter to the Section on Legal Education and Bar Admission in support of the proposed rule.

For those who don’t know the details, the short version is this.  Last summer the ABA extensively revised the Standards for Approval of Law Schools.  As a part of that revision, Standard 304(b) defined law school clinics in a manner that required client representation, thus mediation clinics where students act as mediators were excluded from what constitutes a law school clinic.  The ABA’s DR Section proposed revising Std. 304(b), which the Section on Legal Education endorsed as a part of other “cleaning up” changes and asked for comments.  For more details, go here to see the problem and here to see the proposed solution.

Dear Prof. Howland and Mr. Currier:

The ABA’s Section of Dispute Resolution wholeheartedly endorses the proposed change to Standard 304(b) of the ABA Standards for Approval of Law Schools to reinstate mediation clinics into the definition of law school clinics. Although mediation is not the practice of law, the Section agrees with the proposal’s reasoning that acting as a mediator is a lawyering skill that does not include the representation of clients and that the Model Rules of Professional Conduct expressly recognize that lawyers regularly act as mediators.

Indeed, this ABA Section would not be in existence if acting as a third-party neutral were not considered a lawyering role. As soon as we became aware that the newly approved Standards for Approval of Law Schools defined law school clinics in a manner that excluded mediation clinics, Section Chair Geetha Ravindra immediately constituted a Task Force to make suggestions for amending Standard 304(b) to include mediation clinics in the definition. The Task Force made its suggestions, which were largely in accord with your recent proposed change. The Section’s Council unanimously approved these suggestions and subsequently forwarded them to you for your consideration.

It is our understanding that there are nearly 50 law school mediation clinics in existence, and they serve three valuable learning purposes. The first is skill development. The skills of a good mediator — listening, questioning, persuading, problem solving and negotiating — overlap with those of a good lawyer in all areas of legal practice, and mediation clinics provide robust educational opportunities to work on all of these skills in real time with live clients involved in actual disputes. The second learning purpose is to provide students the opportunity to observe lawyering from a more distanced, critical perspective. Lawyers are often representing individuals in the disputes the students mediate, giving students the opportunity to see both good and bad lawyering practices. Thus, students appreciate how lawyers can be both helpful and harmful to their clients’ interests. Finally, the third learning purpose of mediation clinics is to better understand conflict and conflict management generally. From the mediator’s vantage point students see how conflicts emerge, sound, escalate, and de-escalate. As a result, students develop more empathy and understanding of diverse client concerns, issues, and interests, resulting in better service to future clients.

Finally, the Section realizes that we should have noticed that the revised Rule 304(b) had this impact on mediation clinics much sooner than we did. We could have brought this to your attention earlier, and possibly could have resolved this issue much earlier. We apologize for our oversight.

Again, the Section unequivocally supports the proposed revision to Standard 304(b). If the Section can provide any further assistance on this matter please let us know.

Sincerely,

/s/ Geetha Ravindra, Chair

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By Art Hinshaw

Art Hinshaw is a Clinical Professor of Law and the Director of the Lodestar Dispute Resolution Program at ASU Sandra Day O'Conner College of Law. His research and teaching interests focus primarily on mediation and negotiation, often bridging ADR theory and practice. He is an avid writer and contributor to ADR Prof Blog.