Q&A with Prof. Lisa Klerman
Thursday, Aug 11, 2011
As director of USC Law’s Mediation Clinic, Prof. Lisa Klerman’s main objective is to teach law students the conflict resolution skills needed to craft creative solutions in emotionally charged situations.
|Prof. Lisa Klerman|
Although these skills are at the heart of mediation, “learning these techniques will help students in all kinds of law practice, not just mediation,” said Klerman, who launched the USC Law Mediation Clinic in 2007. Mediation is one the fastest-growing areas of law, especially in California. In teaching the Mediation Clinic, Klerman draws upon her experience in mediating hundreds of cases in her own private mediation practice, as well as her prior experience in representing clients as a partner at Morrison & Foerster in Los Angeles.
What skills are students learning in the Mediation Clinic?
In the Mediation Clinic, students learn active listening techniques and effective questioning to uncover underlying interests, as well as methods for breaking an impasse and closing deals. These are essential skills, because when students graduate and begin working as lawyers, a large percentage of their time will be spent negotiating deals as transactional attorneys, or negotiating settlements as litigators.
Why is mediation important for law students to learn?
Because we have all been trained to be highly analytical in our approaches to clients’ legal problems, lawyers are sometimes accused of losing sight of what really matters most to a client in the course of a business deal or representation in litigation. Clients will be drawn to lawyers who they feel are really listening to them and who make an effort to uncover and understand their true objectives, the nature of their business and its goals, and how the current legal problem they are facing can be resolved using a variety of creative approaches. Students who are exposed to mediation processes and techniques in law school will have an edge, plain and simple. Their knowledge will make them much more effective in representing clients in any situation.
More importantly, these skills are valuable in other aspects of law practice, and even life in general. So much of good lawyering involves connecting with people, and persuading them — whether you are talking about clients, law colleagues, staff, senior partners at law firms, opposing counsel, parties, judges, or jurors. Dispute resolution skills are useful no matter who you are or where you work.
How does the Mediation Clinic work?
In the first half of the course, I teach mediation skills to the students. In the second half of the semester, the students each mediate six or more live cases that are pending in the Los Angeles Superior Court. The students spend all their “live” clinic time at the courthouse. The mediations they handle are an integral part of the court system. The judge or courtroom clerk introduces them to the litigants, and they mediate the dispute right there in a courthouse conference room. In many cases they return with the parties to the courtroom to put the settlement on the record. It is exceptionally rewarding work, because you’ve taken a very bad situation and — often in the face of enormous barriers to settlement — assisted the parties in reaching a resolution and achieving peace.
What kinds of cases are Mediation Clinic students involved in?
I teach the students to mediate a wide range of cases, because they must be ready to mediate whatever cases the court assigns them. The most common cases are those involving civil harassment restraining orders, disputes between neighbors, family conflicts, landlord/ tenant matters, and contractual disputes. The vast majority of the cases the clinic students handle are cases involving parties who would never be able to afford the cost of private mediation services. In many cases their court filing fees have been waived.
Can you describe some of the more unusual mediation cases students have taken on?
Sometimes the cases capture unique aspects of our Los Angeles culture. In one case from last year, a young rap artist had sued his agent for various performance breaches. A couple of years ago a pair of clinic students mediated a medical malpractice case where a woman had scraped together her meager savings to pay for a plastic surgery procedure that was botched. Another case started out as a simple contract dispute between two parties who each claimed the other owed them money, until the defendant — a struggling screenwriter — offered to give the plaintiff — a struggling actress — the leading role in his movie as a condition of dropping her lawsuit.
Is mediation gaining ground in the legal world?
Absolutely. We’re at the point now where fewer than 2 percent of the cases fi led in court actually make it to trial. For those students entering firms as a litigator, I can almost guarantee that they’ll be spending much more time in a mediator’s office than in trial. By some estimates, there are several thousand mediation professionals in the greater Los Angeles area, although not all are full-time. Here at USC, I can think of at least four faculty members that have alternative dispute resolution practices outside of their teaching obligations.
Is mediation taught in other classes or programs at USC Law?
We have a terrific “Negotiation and ADR” course co-taught by professors Alex Polsky and Brenda Radmacher. This is a skills course concentrating on negotiation techniques in the first half of class, followed by a component on mediation, with an emphasis on representing clients during mediation. In addition, we offer a course on “ADR Law and Policy” from time to time. Prof. Gillian Hadfield and I have both taught this course in the past. There are also several specialized ADR courses, such as the International Arbitration class, and the International Negotiation and Mediation class, both taught by Prof. John Garman.
Are there any new developments for the Mediation Clinic?
Beginning this spring, the Mediation Clinic will expand to accept more students. In addition, there will be an Advanced Mediation Clinic for the students who have already completed the regular Mediation Clinic in a prior semester. Students in the Advanced Mediation Clinic will learn additional mediation skills that will enable them to mediate more sophisticated and complex court cases, and they will also assist with the training and mentoring of the beginning student mediators. It’s a very exciting development that should benefit both beginning and advanced students.