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Abstract

Can lawyers become mediators? Imagine a meeting between a lawyer and a client, discussing a legal dispute that has brought the client to the lawyer's office. Imagine, too, that the lawyer has dutifully informed the client about the various options that are available for handling the dispute, ranging from one end of the spectrum - adversarial litigation - to the other - mediation. Indeed, some court rules, and even some ethics standards, ask lawyers to inform their clients of the various methods available to resolve the clients' disputes, including mediation. The lawyer is skilled and candid. She accurately and wholeheartedly describes the potential benefits and risks of mediation. The client is persuaded by his lawyer's eloquence. "Mediation sounds good," he says. "In fact, you understand it so well - and you understand this matter so well - that I would like you to be the mediator." Is there a problem? Should the lawyer become the mediator? As a matter of sound ethical judgment, can she? We can also imagine the issue arising during supervision in a clinical education program. In good clinical style, the supervisor asks the law student what he plans to do. The student, having taken some courses in alternative dispute resolution and having been imbued with a reforming fervor for ADR, suggests that he mediate. Should the supervisor say yes? Should the supervisor instead say something like, "You've certainly learned a lot of theory in your other classes. But you're in the clinic now. Get real. Forget about mediation. Handle the matter like a lawyer!" Should we laugh indulgently with the student who wants to change roles and mediate, in the same way we do at the classic Gary Palm story of the law student who wanted to take matters into his own hands?

Publication Title

Clinical Law Review

Volume

5

Issue

1

First Page

47

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