Mediation is rarely taught as a core subject in business schools, law schools and other professional curricula, despite the fact that an increasing number of jurisdictions now provide for some form of court sponsored mediation. A number of global companies include courses in negotiation and mediation in their professional development offering, but the courses are not always effective in addressing real life situations.
The case for, and benefits of, including negotiation and mediation as core modules in law courses rather than a mere elective has already been made elsewhere (e.g., Riskin 1984; Lewis 2016). Results from the GPC Series 2016-17 for North America published on the International Mediation Institute’s website[iii] further confirm that education in law and business schools in these disciplines has become a major demand for users of dispute resolution services throughout North America.
However, a proper understanding of mediation requires not only knowledge of mediation (education) but also some actual experience as mediator or mediation advocate in real cases. With typically large student numbers, one can probably only expect the former to be offered in the standard curriculum, although many U.S. law schools offer clinical programs where students can practise mediator skills. These programs often collaborate with the courts or community dispute resolution programs.
Yet teaching mediation skills to students before they have a decent understanding of negotiation puts the cart before the horse. A compulsory course in negotiation for law students should be standard in legal training: most of a legal practitioner’s or corporate advisor’s professional time is spent negotiating. Yet few law schools outside the U.S. seem to provide for it. We believe that mediation should not be offered as a course on “alternative” dispute resolution but incorporated into the broader framework of legal practice, alongside arbitration and adjudication, with equivalent status.
As Riskin (1984) states: “Law schools should not graduate a mature mediator”. Providing more in-depth knowledge and hands-on experience of mediation needs to be reserved for masters or postgraduate levels. Given factors such as lack of time in the law curriculum, large student numbers, budget constraints and availability of experienced faculty, there is little option but to do so. Such programs must also focus on additional skills such as counselling, process selection, effective preparation skills, cultural dynamics, mediation advocacy, mixed-mode dispute resolution, emotional intelligence and neuroscience.
Mediation knowledge and skills for non-lawyers
What about business schools? Many already offer negotiation either as an elective or as a core subject in their degree programs, including the MBA. Some include mediation as part of the curriculum, some make a cursory reference to it while others don’t cover it at all. Yet business schools are perfectly placed to inform participants in both their degree and executive programs about the benefits of mediation from a business perspective. The results of the GPC Series 2016-17[iv] demonstrate quite clearly the size of the attitudinal gap between corporate managers and corporate counsel (the demand side) on the one hand, and their legal advisors on the other, regarding dispute resolution needs and expectations. While, for example, clients rated efficiency of dispute resolution processes as their primary concern, their external lawyers tended to provide advice based on their own training and experience which, by and large, did not include knowledge or experience of mediation.
Business schools can contribute to increasing knowledge of mediation in different ways, beginning by including negotiation as a core competency in their degree programs and including a module on what one might call ‘mediation literacy’ in negotiation courses, not least because of the emerging importance of facilitated negotiation.
Business schools can also offer postgraduate diploma-type programs that include as core modules dispute avoidance and management, negotiation and mediation. At one business school, where one of the authors taught for many years, such a program was offered with the mediation component being taught by an external, accredited mediation training agency that provided participants not only with an academic qualification but also accreditation as mediator in the local jurisdiction with an option to also qualify in a particular foreign jurisdiction subject to certain conditions. Models for this type of program can also be found in North American Law Schools that offer certificate programs for dispute resolution.
Business schools are also ideal hubs for bringing together members of the legal and business worlds to discuss mutual interests and concerns regarding the resolution of business-related disputes, particularly in a globalised and fast-changing operating environment. This can include the promotion of Planned Early Dispute Resolution[v] (PEDR); setting up round tables[vi] and workshops – involving faculty, legal and dispute resolution practitioners, in-house counsel and senior managers – around themes such as “Legal Means Business”.
Internal and corporate education
But what happens when the student enters the work force, or an executive program participant gets back to the workplace? Do they have scope for practising and honing their newly acquired negotiation and/or mediation skills set? What about employees who didn’t have the opportunity to attend negotiation and mediation courses? Currently the focus of negotiation courses offered by global companies is mostly on sales and procurement negotiations and not dispute management and resolution. Offering access to courses focused on dispute avoidance and management as part of their employees’ professional development could bring significant added value to a company, especially if those courses are customised to the organisation’s needs and not merely generic, off-the-shelf products. Courses can be delivered using on-line technology, a more efficient delivery system for global organizations.
Negotiation and mediation training can build on one another to impart skills that address real life problems in organisations with potential spin-off benefits beyond the organisation. It can also enable those who have received training to begin applying their skills in their personal lives, their communities and society at large. In 2019, almost 200 CEOs signed a Business Roundtable statement[vii] defining five purposes of business. One of them is “Investing in our employees. This … includes supporting them through training and education that help develop new skills for a rapidly changing world…”. Need we say more?
[i] Barney Jordaan is Professor of Management Practice: Negotiation, Conflict Management, Mediation at Vlerick Business School in Belgium. He holds a doctorate in law from Stellenbosch University, where he was professor of law until 1997 teaching negotiation and mediation, including at Stellenbosch University Business School and the Graduate School of Business, University of Cape Town. Barney was co-founder and director of a consulting firm in South Africa specialising in negotiation, mediation and conflict resolution. Barney chaired the Academic Committee of the Global Pound Conference Series 2016-17. He is a Certified Mediator with the International Mediation Institute (The Hague) and is accredited by both CEDR (UK) and the ADR Group (UK).
[ii] Deborah Masucci is a former user of mediation services, having been Head of the Office of Dispute Resolution at American International Group Inc (AIG). Debbie is a former Chair of the Dispute Resolution Sections of the American Bar Association and the New York State Bar Association and is currently Co-Chair of the International Mediation Institute (IMI) and a fellow of the Chartered Institute of Arbitrators. She is now a practicing mediator and an arbitrator. In February 2020, Debbie was the recipient of the 2020 CPR Institute’s annual James F. Henry Award for her distinguished, sustained contributions to the dispute resolution field, and a 2020 Award winner from International Advisory Experts.
- Lewis, L. L. (2016) “Law Student Mediators Wear a Triple Crown: Skilled, Sellable, & Successful” available here.
- Masucci, D. (2017) “Access to Justice – The Road Ahead: What is the Role of the Lawyer/Advisor and Education?” Fordham Law Journal Volume 40, Issue 3 Article 10
- Riskin, L. (1984) “Mediation in the Law Schools” 34 Journal of Legal Education 259.
Originally published via Mediate.com on June 19 2020. Republished with permission.