Mediation Clinic – Arizona State University

 Law 775 – Hinshaw

Course Information and Syllabus – Spring 2006

 

 

I.          Instructors

 

Professor

 

Art Hinshaw

office: Armstrong Hall, Room 255

phone: (480) 965-3109

email: art.hinshaw@asu.edu

 

Adjunct Professor

Shannon Arriola

 

Teaching Assistant

Heather Seiferth

 

Mediation Clinic Administration

 

Program Coordinator: Suzanne Lynn

office: Armstrong Hall, Room 265

phone: (480) 727-9331

fax: (480) 965-6839

email: suzanne.lynn@asu.edu

 

 

II.        Class Meetings

 

Class will be on Mondays and Wednesdays from 8:30 – 10:25 am in Room 111.  There will also be two and a half days of mandatory training sessions – Friday evening January 20, Saturday January 21, and Saturday January 28.   

 

III.       Course Philosophy and Goals

 

This course focuses on the process by which mediators assist others in resolving disputes.  You will find that mediation is a burgeoning field, yet most people fail to understand that mediation is as much an art as it is a science.  In this class we focus on both the art and the science of mediation.  We will study the theory, strategy, skills and public policy issues involved in the mediation of disputes, and we will put our skills to work by mediating live cases in the Maricopa County Justice Courts. 


 

Specifically our goals for you are:

 

  • To improve your skills in listening, questioning, problem solving, persuasion, negotiation, and professional judgment.

 

  • To increase your understanding of mediation theory and practice, including ethical issues.

 

  • To increase your appreciation of the advantages and disadvantages to mediation and litigation as dispute resolution mechanisms.

 

  • To encourage you to be more thoughtful about your professional work and your own approaches to dispute resolution, both as advocates and as mediators.

 

Everything we do in this class, from readings to demonstrations to experiential exercises, is focused on achieving one or more of these goals. 

 

 IV.      Books

 

The required textbook we will use in this course is:

 

            Mediation: Principles and Practice,

            by Kimberlee Kovack, (3rd ed., Thompson West 2004).

 

This book is available in the ASU bookstore.

 

Two helpful, but not required, books are:

 

            Getting to Yes: Negotiating Agreement Without Giving In,

            by Roger Fisher, Bill Ury and Bruce Patton, (2nd ed., Penguin 1991).

 

            Difficult Conversations: How to Discuss What Matters Most,

            by Douglass Stone, Bruce Patton and Sheila Heen, (Viking 1999)

 

These books are widely available in libraries, bookstores and online.

 

V.        Clinic Materials

 

There are two sets of materials you will need to pick up in the Copy Center downstairs.  The first is the Mediation Clinic Training Manual, which contains various mediation documents, training materials and court rules regarding mediation.  The second is the Mediation Clinic Reader, which consists of reading materials to supplement our readings from the textbook. 


 

VI.       Attendance, Punctuality and Class Preparation

 

In the many of our classes, you will be teamed with other students to do mediation role-play scenarios. Hence, your timely attendance and participation are crucial in this course.  If you are absent, your absence will preclude not only your participation that day, but also that of other students. The same applies to preparation for class. If you come to class unprepared, not only will you have a poorer experience, but your fellow students will also have a lesser experience.  

 

If you do not expect to be able to attend every class, you should not take this course.  The bottom line is – attendance is required, and any absence is presumptively unexcused.  That said, emergencies unfortunately do arise. If you must miss class, or if you are not prepared to participate on a particular day, you must provide me with a note or email, in advance, explaining the reasons why you are requesting an exception from the normal expectation of participation. A phone call or a conversation, while helpful in adjusting mediation groupings, is not sufficient.  I will make a final decision as to whether your absence should be excused.   

 

Lack of punctuality and lack of preparation will be taken into account in calculating class participation grades.  I also reserve the right to impose other sanctions permitted by university and law school rules.  For example, in the past I have given pop-quizzes on reading assignments when it became clear that no one was reading.

 

Remember, learning the skills we will be teaching in this course is not something that can be done “to” you or “for” you.  You must work on it yourself, and what you learn in this course in large part depends on your effort.

 

VII.     Mediation Exercises

 

Throughout the course, particularly earlier in the semester, you will be participating in role-play exercises as mediators or as disputing parties.  Before each exercise, you will be assigned a role and given instructions about your role.  The instructions are designed to be self explanatory, and may contain confidential information.  Do not show or discuss your confidential information to those who have been assigned different roles before the exercise begins.  Doing so will undermine the learning opportunities for yourself and your classmates. 

 

The instructors will be sitting in on your mediations and critiquing your performance.  Since there are only two instructors, we will be videotaping the exercises that we cannot sit in on.

 

For more specific instructions about your duties and responsibilities in role-playing, please see “General Instructions for Role-Play Scenarios” in your Clinic Notebook.


 

VIII.    Field Experiences

 

Since this is a clinical class, you are required to do work in the “real world”.  To satisfy this requirement, you must participate in at least 10 mediation experiences during the semester.  The breakdown is as follows:

 

  • Observe one Justice Court mediation.

 

  • Conduct one supervised Justice Court mediation as a co-mediator (with a faculty member or a designated experienced community mediator).

 

  • Co-mediate a total of seven Justice Court and/or other mediations.

 

  • Observe one professional mediation

 

  • Co-mediate City of Tempe mediations or Residence Hall mediations, if necessary.

 

After each mediation you are to fill out a Mediation Fieldwork Report describing the mediation you observed or conducted.  A form for the Report is in your Clinic Notebook and a copy will be sent to you electronically.  This form is to be completed and delivered by hand or as an email attachment to Suzy Lynn within 2 days of the mediation’s occurrence. 

 

Suzy will keep the “official” tally of your number of field experiences, and her numbers come from these completed documents. Additionally, you should keep a Mediation Log to help you keep track of your mediations.  This is especially important should your numbers differ from the official tally.  At the end of the semester you will turn your log into Suzy.  A form for the log is in the Clinic Notebook.

 

IX.       Grading Policy

 

This course is graded on the following scale:

 

            high honors, honors, pass, numeric grade (between 70 and 59), fail.

 

This course is considered to be a graded course for law school purposes.  It does not count toward the number of pass/fail courses you may take.  Note that your grade in this class will not be determined by the outcome of the mediations you conduct.

 

The following factors will go into your final grade:

 

  1. Attendance, tardiness and class participation – (see Section VI above)

 

  1. Mediation Fieldwork Reports – (see Section VIII above)

 

  1. Your ability as a mediator (this is a skills course after all)

 

  1. Oral Class Reports on Mediation Experiences

 

Once we begin observing mediations, we will do case rounds where you and your classmates will report on the happenings in the mediations you are observing or conducting.  For detailed instructions on presenting your case to the class, please see “Guidelines for Oral Reports on Mediation Experiences” in the Training Manual.

 

  1. Class Presentations

 

The class will culminate with short presentations about a specific application of mediation.  Your presentation should include information gathered from an interview of someone who is involved with the particular mediation application you choose.  You are free to pick any mediation context you like, but I will prepare a list of potential topics to get you started. 

 

Presentation Dates: April 17, 19 and 24, 2006

 

X.        Certificate

 

All students who successfully complete this course will receive a certificate of completion, which will provide proof of having completed 40 hours of mediation training. 

 

XI.       Syllabus

 

Week 1

 

January 18 – Conflict Theory Basics

 

      Read  – Article No. 1 in the Clinic Reader

 

1.         Leonard L. Riskin, et al, “The Nature of Conflict and Disputes” excerpt from Dispute Resolution and Lawyers, 3rd ed. (forthcoming).

 

January 20 and 21 – Mediation Skills Training Seminar

 

Week 2

 

January 23 – Individuals and Conflict

 

      Read – Article Nos. 2 and 3 in the Clinic Reader

 

2.      Cloke, et al., “The Hidden Meaning of Conflict Stories,” in Resolving Personal and Organizational Conflict (1995).

 

3.      Bernard S. Mayer, “What People Want in Conflict,” in Beyond Neutrality: Confronting the Crisis in Conflict Resolution (2004).


 

January 25 – Negotiation

 

Read – Kovach, Chpts. 8 and Article No. 4 in the Clinic Reader.  Review Kovach, Chpt. 7.

 

4.   Jay Folberg, et al., “Identifying Interests and Developing Options,” in Resolving Disputes: Theory, Practice and Law (2005). 

 

January 28 – Mediation Skills Training Seminar

 

Week 3

 

January 30 – Mediating in Justice Court

 

            Review – Justice Court Mediation Documents in Clinic Notebook

 

February  1 – Mediator Styles

 

            Read Article Nos. 5 through 8 in the Clinic Reader.

 

5.      Leonard L. Riskin, “Retiring and Replacing the Grid of Mediator Orientations,” 21 Alternatives 69 (2003) and 12 Alternatives 111 (1994), excerpted in Folberg, et al., Resolving Disputes: Theory, Practice and Law (2005).

 

6.      Gary Friedman & Jack Himmelstein, The Understanding Based Model of Mediation (2004), excerpted in Menkel-Meadow, et al., Dispute Resolution: Beyond the Adversarial Model, (2005).

 

7.      Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation (1994),

excerpted in Menkel-Meadow, et al., Dispute Resolution: Beyond the Adversarial Model, (2005).

 

8.   James J. Alfini, “Trashing, Bashing, and Hashing It Out: Is This the End of ‘Good Mediation’?”, 19 Fla. St. U. L.Rev. 47 (1991), excerpted in Menkel-Meadow, et al., Dispute Resolution: Beyond the Adversarial Model, 2005.

 

Week 4

 

February 6 – Mediator Styles (cont.)

 

            Read Article No. 9 in the Clinic Reader

 

9.   Lela P. Love, “The Top Ten Reasons Why Mediators Should Not Evaluate,” 24 Fla. St. U. L.Rev. 839 (1997), excerpted in J. Alfini, et al, Mediation Theory and Practice (2001).


 

February 8 – Impasse Strategies

 

      Read Article Nos. 10 and 11

 

10. Eric Galton, “Impasse-Breaking Techniques,” in Representing Clients in Mediation, pp. 104-112 (1995).

 

11. John W. Cooley, “Restructural Caucusing,” in The Mediator’s Handbook (2000).

 

Week 5

 

February 13 – Finalizing a Mediation and Writing Agreements

 

Read – Kovach, Chpts. 12 (pp. 339 – 349) and 13 (pp. 387 – 392) and Advice re: Writing Agreements in the Training Manual

 

February 15 – Fish-Bowl exercises

 

Week 6

 

February 20 – Fish Bowl exercises

 

February 22 – Power Imbalances

 

            Read – Article No. 12 in the Clinic Reader

 

12. Jordi Agusti-Panareda, “Power Imbalances in Mediation: Questioning Some Common Assumptions,” May – June Dis. Res. J. 24 (2004).

 

Week 7

 

February 27 – Attorneys and Mediation (meet in Room 114)

 

      Read – Article Nos. 13 – 16 in the Clinic Reader

 

13. Leonard L. Riskin, “Mediation and Lawyers,” 43 Ohio St. L.J. 29 (1982), excerpted in Menkel-Meadow, et al., Dispute Resolution: Beyond the Adversarial Model, (2005).

 

14. Helaine S. Golann and Dwight Golann, “Why Is It Hard for Lawyers to Deal With Emotional Issues?”, 9 Disp. Res. Mag. 26 (Winter 2003), excerpted in Folberg, et al., Resolving Disputes: Theory, Practice and Law (2005).

 

15. Jay Folberg, et al., “Managing Positional Bargaining,” in Resolving Disputes: Theory, Practice and Law (2005).

 

16. J. Michael Keating, “Mediating the Dance for Dollars,” 14 Alternatives 71 (1996), excerpted in Folberg, et al., Resolving Disputes: Theory, Practice and Law (2005).

 

 March 1 - Skills Review

 

Week 8

 

March 6 – Case Rounds

 

March 8 – Ethics

 

Read – Kovach, Chpt. 14 (pp. 395-404, 413-418) and review Appendix B (Joint Model Standards of Conduct for Mediators).  Also, review Article Nos. 17 and 18 in the Clinic Reader

 

17.  Paul Rubin, Dr. Buzzard: Mediator Gary Karpin Preyed on Vulnerable Divorcees, Phoenix New Times (January 27, 2005).

 

18.  In Re Fee, 182 Ariz. 597, 898 P.2d 975 (Ariz. 1995).

 

March 13 and 15 – Spring Break – No Class !!

 

Week 9

 

March 20 – Case Rounds

 

March 22 – Confidentiality

 

Read – Kovach Chpt. 11 (pp. 263-276, 299-310, 317-326) and Article 19 in the Clinic Reader

 

19. Olam v. Congress Mtge. Co., 68 F. Supp. 2d 1110 (N.D. Cal. 1999), excerpted in Menkel-Meadow, et al., Dispute Resolution: Beyond the Adversarial Model, 2005.

 

Week 10

 

March 27 – Case Rounds

 

March 29 – Settlement

 

Read – Article Nos. 20 and 21 in the reader

 

20. Owen Fiss, “Against Settlement,” 93 Yale L.J. 1073 (1984), excerpted in Riskin & Westbrook, Dispute Resolution and Lawyers, 2nd ed. 1998

 

21. Carrie Menkel-Meadow, “Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases)”, 83 Geo.L.J. 2663, 2663-71, 2692, excerpted in Riskin & Westbrook, Dispute Resolution and Lawyers, 2nd ed. 1998


 

Week 11

 

April 3 – Case Rounds

 

April 5 – No Class

 

Week 12

 

April 10 – Case Rounds

 

April 12 – No Class

 

Week 13

 

April 17 – Presentations

 

April 19 – Presentations

 

Week 14

 

April 24 – Presentations and Moving Forward
 


Copyright 2006 Art Hinshaw. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.