Fri 15 Jun 2012

What Does Mediation Require of Articling Students?

Posted by Heverton.Oliveira

In the June 2012 issue of BarTalk, the bi-monthly publication of the BC Branch of the Canadian Bar Association, the Honourable Chief Justice Robert Bauman of the Supreme Court of British Columbia offered his thoughts on what the Court expects of articling students.[1]  His observations focused on the kind of court matters students should appear on, how to prepare for the appearance, and some basic guidelines for the appearance itself.

As a law professor newly tasked to teach a soon-to-be mandatory course in Ethics and Professionalism, my immediate reaction to the thoughts expressed by the Chief Justice was to ponder the parallel question: what does an articling student need to know in order to provide competent client representation in mediation?

In what kind of mediations should articling students act?

As Chief Justice Bauman points out, effective September 1, 2011, Law Society Rule 2-32.01 allows articling students to provide virtually[2] all legal services that a lawyer is permitted to provide, as long as the student is competent and properly prepared.  Given that mediation advocacy is an increasingly important legal service, presumably it follows that an articling student is permitted to assist clients in any form of mediation that her principal believes the student can handle competently.  Thus, the first question a lawyer acting as principal must ask herself is what it means to be competent in representing a client in mediation.  Having answered this question, she can assist and instruct her articling student in preparing for the mediation.

What is competence in representing a client in mediation?

There is considerable disagreement amongst mentoring lawyers regarding this question that goes much deeper than a debate about negotiation styles. Different perspectives on and differing levels of knowledge about mediation can lead to considerable differences in a lawyer’s view as to what constitutes competence in mediation.  For instance:

• does the mentoring lawyer view mediation advocacy as a distinct skill set, or

• does she think of negotiation as an adjunct to litigation, using the process as a forum to argue for a specific result that derives from probable litigation outcomes?

Both of these mentors will expect the student to understand the facts of the case and the related legal framework, including the likely results of a trial of the case.  In addition, the first of these two mentors will consider the student’s understanding of both the mediation process and the client’s interests (legal and non-legal), and will expect the student to be able to offer the client specialized negotiation techniques and strategies to enhance the likelihood of a good resolution and to expand the range of possible outcomes. By contrast, the second mentor will consider more relevant the student’s ability to argue persuasively for their client’s interpretation of the facts and law.

So which mentor is right? It is entirely possible that a client of each of these mentors would be satisfied with the representation they receive from their articling student.  The first client may be delighted with an early settlement that meets his needs, legal and non-legal; on the other hand, the second client may be pleased with the student’s zealous advocacy on his behalf irrespective of the immediate result.

Perhaps there is a greater difference in the client’s view of the process itself as opposed to her view of her counsel?  In fact, it is likely that the first client will be more satisfied with the justice system generally, because she will almost certainly have had a greater opportunity to voice her own concerns and to address non-legal goals (as well as legal ones) through the settlement process. Nearly 40 years of procedural justice research shows that disputants who have the opportunity to voice their opinions and have some control over the decision-making process are more likely to view that process as fair and just.

So should we as lawyers and mentors care about client perceptions of the justice system?  In a world where only 44% of Canadians trust lawyers[3], and the popular impression of the legal system is decidedly poor, perhaps it behooves all lawyers to contemplate the interrelationship of their duties “to promote the interests of the state, serve the cause of justice, [and] maintain the authority and dignity of the courts”[4] and their ability to meet their client’s interests in justice through greater focus on settlement rather than litigation.  Failing this, I believe we are failing each other.

Even if the well-being of the justice system is too lofty and indirect a goal for a lawyer focused on a single file, pure self-interest dictates that greater client satisfaction with legal processes is more likely to translate into future work from that client and from referrals.

All the foregoing said, in my new course on Ethics and Professionalism, I will certainly spend time exploring the differing meanings that lawyers apply to ideas of practice competence.  I suspect that the consideration of dispute resolution skills in this context will generate substantial debate.

Guest blogger Sharon Sutherland is Assistant Professor at the University of British Columbia Faculty of Law at Allard Hall teaching Ethics and Professionalism, the Clinical Mediation Program and the Judicial Externship. She was one of the founders of Mediate BC and the CoRe Conflict Resolution Clinic at UBC and a key leader in conflict resolution in BC. Sharon welcomes suggestions for future blog posts on innovative educational approaches from all areas of conflict management.

Photo by Kimberly Farmer on Unsplash

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