THE MIDDLE WAY

Mediation advocacy competition explores the art of compromise

   A growing area of legal practice, mediation advocacy, got high-profile exposure in November as the Law School held its Intramural ABA Mediation Advocacy Competition. The top two teams – Monique Blackwood and Carol Farrar Gembar, and Allen Blount and Andy Montroy – will represent UB Law School in the regional competition to be held at UB on March 6-7.

     The competition is a huge undertaking, said law student Shruti Amin, who was a major organizer as president of the Buffalo Law School Association for Alternative Dispute Resolution; its faculty adviser is Professor Suzanne Tomkins. With 16 teams taking part – participants alternated between acting as the client and as the attorney – between 32 and 40 judges were needed from the legal community to adjudicate all the rounds. Two judges are needed for each face-off – one to act as the mediator, one to evaluate the students’ work.

“Actually, there is almost no law involved,” said Amin, who competed in the event last year. “A lot depends on whether you can think outside the box and get both of your interests met. ADR is now utilized in almost every legal area. I think it is the better way for people to resolve their disputes.”

“Usually the client is the one who tells the facts about what happened,” said Blackwood. “The attorney may discuss the legal issues and also bring forth the client’s interests and positions. The final agreement is to satisfy both parties: You negotiate and compromise to reach an agreement that satisfies both parties.”

The participants dealt with two scenarios: a labor dispute and a personal injury case.

“As I was doing it, I was responding to what came naturally to me,” said Blackwood’s partner, Farrar. “You did not really know what the other side was thinking. As you went along, you had to figure out what might work, what they might have said.”

She cites the first case, in which a man was terminated for alleged insubordination; he claimed a hearing problem and said he did not hear the order. One issue was, if the man were reinstated to his job, should he be paid for the salary he missed? Farrar proposed paying him the difference between his salary and what the firm had to pay his replacement during his absence. “I do not know where that came from, but the arbitrator seemed to like it,” she said.

But just because mediation is constructive does not mean it is easy. “At times we did get a little snippy and play hardball,” Farrar said. “It wasn’t like ‘Leave It to Beaver’ on TV.

   “But it was fun, especially when you are not doing it in the real world. It gives you a chance to see if you have abilities in this area. You get a lot of feedback from actual mediators on areas you were good in and areas you needed improvement in. It is a dry run so you are not doing it for the first time when you have an actual client.”

        For Montroy, a member of the second-place team, this was his first moot court experience. “Unlike some of the trial-format competitions, this one seemed a little different,” he said. “You have goals and it is how best you achieve those goals. It is not as if you are trying to get the most money. It is more what game plan you develop with your client. The mediator is trying to lead you in a certain direction, but there is some flexibility in what you want to achieve.”

                 Montroy said he had not taken either ADR or mediation in the classroom. “The one thing about this competition is, it gives you the flexibility to use your personality and common-sense,” he said. “I worked for the EPA this past summer, and pretty much all they do is mediation. I felt very comfortable doing it. It was fun, it was exhilarating, it was challenging, it was all of those things.”

    UB won the right to host the regional tournament in March, Amin said, by winning the regional competition last year. About 10 schools are expected to participate, sending two teams apiece, she said, so “We are going to need a lot of volunteers” to serve as judges and in other capacities. Want to help? E-mail the ADR group at buffalolawschool_adr@hotmail.com.