This summer I was tending to family matters, so I paid no attention to the big news of the passage of the ABA’s Revised Standards for Approval of Law Schools. And once I got back for the beginning of the semester, my focus was strictly on getting my classes ready. Yeah, I responded to Jen’s email on the list serv about simulation classes, but that was about it. So you can imagine my surprise this afternoon when I found out that the Revised Standards say
Standard 304. Simulation Courses and Law Clinics
(b) a law clinic provides substantial lawyering experience that (1) involves one or more actual clients, and (2) includes the following:(i) advising or representing a client; (ii) direct supervision of the student’s performance by a faculty member; (iii) opportunities for performance, feedback from a faculty member, and self-evaluation; and (iv) a classroom instructional component.
In my mediation clinic, all of our mediations are conducted through court ordered mediation – the litigants are required to go to mediation in order to receive a trial date. More importantly, my students are part of the court’s mediation program – a stable of court mediators who are court volunteers organized by the court itself (applications, background checks, court badges, etc.). In other words, my students are part of the court writ-large; and the court writ-large does not engage in advising or representing clients. So it appears that my mediation clinic is now written out of the definition of a law school clinic as of August 12, 2014, when the Revised Rules became operational.
I am not saying that mediation clinics are joining the dinosaurs. In fact, I can see clinics that (a) have referral sources that are not courts, and (b) advise clients about various issues related to their dispute such as options, procedural issues, and legal information (as opposed to legal advice) maintaining their good graces in the eye of the ABA. But I can also see our field saying “that’s not what we do.”
And for those of us who no longer are officially clinics, I don’t expect that we’re going anywhere. The skills and theory we teach are important for lawyers, our classes are popular with students, and the fieldwork is among the best educational experiences the students will have. That said, we have to come up with new nomenclature. There’s always “Mediation Practicum,” but that’s so last century. What do you think of the likes of “Mediation Lab”? Labs are the rage, are they not? Any suggestions?
Update: Carol Izumi (Hastings) rightly points out that Sandard 302(d) (Learning Outcomes) says that students need to show competency in “other professional skills” necessary to be an ethical and competent lawyer. Interpretation 302-1 says that such skills may include negotiation and conflict resolution among others. This reinforces my belief that although mediation clinics may no longer be considered clinics, they’re not going to be written out of the curriculum.
Update # 2: The ABA Dispute Resolution Section, via Jim Alfini (South Texas), has been in contact with the Barry Currier, the Managing Director of the ABA’s Section of Legal Education. In response to Jim’s email discussing the issue brought up in my post, Currier said “We’ll think this through and I will consult within our process and get back to you.” Also, he pointed out that Revised Standard 304 will be phased in by making it applicable to students who are 1Ls in the fall of 2016. So that give us 2 plus years to either be reinstated as clinics or to come up with other nomenclature.
Update # 3: In my limited investigation into this matter, I’m told that the revised definition of clinics was designed specifically to keep schools from abusing the word “clinic”. Apparently a number of law schools have been labeling their externships (working at Legal Aide, for example) as clinics. According to my sources, these schools have been promoting a ridiculously high “clinical enrollment” when in fact, they have only 1 offering (or none) that most of us would consider a clinic. So it appears that in trying to solve one problem, the revised rules have created another.