Resolving Litigation: Encouraging the Next Generation to Address Conflict

For this month’s feature, I had the pleasure of speaking with Robyn Weinstein, who has dedicated her career to the advancement and craft of conflict resolution. As the current director of the Cardozo Mediation Clinic and associate director of the Kukin Program for Conflict Resolution in New York, I’m thankful that she’s the one training the next generation of practitioners in this arena. And for those students who go into more traditional areas of law practice and don’t go into dispute resolution, the skills and values they learn from Robyn’s program will serve them their entire careers.

Robyn became interested in conflict resolution before attending law school while working as a development and research assistant for an international think tank in Washington, D.C. She credits the researchers and scholars around her for showing her there were innovative ways to think about and address intractable conflicts. She later studied mediation under Professor Lela Love at Cardozo Law School, where Robyn now directs the Mediation Clinic. She hopes to inspire her students to understand how mediation can be a meaningful and effective way for individuals to resolve conflicts. In her words, “From my first experience as a mediator, I found it amazing that even when a case doesn’t settle, two people who were so angry could still walk away saying, ‘Wow, this process impacted me positively.’”

Our conversation focuses on the various avenues of mediation in which she has practiced, and her work directing a clinical mediation program, which allows students to learn to mediate conflict in the context of civil litigation.

One of your earlier jobs was directing Arts Arbitration and Mediation Services for California Lawyers for the Arts. What was that like? 

After taking the California Bar, I decided to go “all in” on dispute resolution and seek full-time roles where I could work as a mediator. Eventually, I landed at California Lawyers for the Arts, whose mission is to connect members of the creative community with legal services, education, and dispute resolution services.

We mediated cases involving independent filmmakers, visual artists, dancers, singers, writers, and actors. The types of disputes varied widely, some were disputes over creative control, others stemmed from conflicts over unpaid invoices, landlord/tenant disputes, and a variety of other civil matters. I mediated cases for the program and oversaw a panel of volunteer mediators and arbitrators. The CLA cases were often challenging, but it was fun being a part of such a large creative community.

You later spent seven years as ADR administrator for the U.S. Federal District Court for the Eastern District of New York. What kind of cases did you and your team handle, and what were the common factors in mediation success and failure?

The most common mediations involved employment discrimination, wage theft, personal injury, consumer credit, insurance disputes, and Section 1983 civil rights claims involving the police or prison system.

The most effective mediators on the panel often spent substantial amounts of time talking with the parties prior to the formal mediation session. They worked to understand the underlying issues, build rapport, and develop a mediation process that fit the needs of a particular case. These mediators were also incredibly persistent, and when a case was not resolved, they stuck with the case long after the parties themselves had given up hope.

One of the things that I learned early in running a court ADR program is that it is essential to understand the needs of each of the stakeholders. In a court setting, the stakeholders included the judiciary, the litigants, and attorneys from both sides of the bar. Early in my time at the court, I met with the judges to understand their needs and expectations for the dispute resolution program. I also met with attorneys in specific practice areas and collaborated with both the bench and bar to offer subject matter-specific training programs for panel mediators and arbitrators. I also did some work developing surveys to hear directly from litigants in the mediation process, but obtaining direct feedback from litigants was challenging for a variety of reasons in the federal court context.

You’ve served as a mediation mentor at Cardozo Law School for nearly 10 years, and about two years ago, you became director of the Cardozo Mediation Clinic and associate director of the Kukin Program for Conflict Resolution. Tell us about those roles and your most interesting challenges.

The Cardozo Mediation Clinic is a year-long program where students receive New York State Court-approved basic mediation training. Our clinic also partners with a local community dispute resolution center called The New York Peace Institute, and the students get to participate in that organization’s apprenticeship program. It is a rigorous program, and by the end of the year, the students become experienced mediators, often having mediated close to 20 cases.

Our clinic receives referrals from New York City Small Claims and Civil Courts, and during the spring semester receives referrals from the Federal Sector of the Equal Employment Opportunity Commission. We also receive referrals from a program called MEND, where we assist neighbors of nightlife establishments like nightclubs, restaurants, and bars and their owners to resolve noise complaints. Prior to working on my first MEND case, I thought they were going to be the hardest to resolve, but it turns out that many parties we’ve met in that context were sincere in their desire to resolve the dispute. Through these experiences, students see the nature of conflict in a variety of settings and gain a unique perspective about conflict, our legal system, and their role as future advocates.

My role as associate director of The Kukin Program for Conflict Resolution is a busy one. I work with our director, Professor Andrea Schneider, to offer students a robust dispute resolution curriculum, including four clinics, a journal, a competition honor society, and a student society that hosts events with leading practitioners and thought leaders. In short, it’s an exciting place to be if you’re interested in dispute resolution.

How do your peers who focus on litigation view mediation? What has been the reaction from parties and lawyers sent to mediation by the courts? Is it helpful or just an obstacle to bringing their matter to trial?

I’ve found that most attorneys are familiar with the mediation process, and some are quite sophisticated in how they use it. Of course, not everyone takes advantage of the process to the fullest, and some are less willing to engage, but for the most part, in my experience, the litigation community in New York seems to value the process.

I have yet to see a mediation where I think a party didn’t gain something from it—either information they didn’t have before, a better understanding of how their counterpart views the case, or a better understanding of who they’re dealing with. When I was overseeing the ADR program at the EDNY, I always knew I had a good mediator on the panel when the case didn’t resolve, but the parties checked the box that they would “highly recommend” the mediator to others. Settlement, while perhaps the most desired outcome, is not the only benefit offered by a quality mediation process.

Turning to access to justice, what do you think the ADR industry can do better?  

Access to justice in mediation is an important conversation, and members of the ADR field are continuously engaged in it, especially when it comes to unrepresented parties.

At the EDNY we worked to bolster the court’s mediation advocacy program, which connects unrepresented litigants and attorneys for the limited purpose of mediation. Parties get an evaluation of their case from a pro bono attorney, and then the attorney goes with them to the mediation. That was the court’s way of addressing any power imbalances that could impede the process. The program also had the effect of protecting the neutrality of the mediator because, in many cases, pro se parties will look to the mediator for legal advice. With our responsibility to be impartial, mediators need to tread carefully there.

A lot of work is also being done in different jurisdictions to train mediators about bias awareness, including cognitive and implicit biases. That’s another important piece of the puzzle in recognizing the influence mediators have on settlement outcomes and ensuring that parties are not negatively impacted by a mediator’s conduct.

Having spent so much time in the ADR industry and observing all the changes and evolutions, where do you see us headed?

There is so much conflict in society right now, and I think there is a general recognition that how we communicate with each other isn’t working—and there needs to be change around that. This fall, I asked some of my students how many of their friends knew what mediation was, and most of them said their non-law school friends had never heard of it. I am so immersed in this world, so to me, the use of mediation feels obvious, but to the rest of the world mediation is still most thought of in the context of divorce. This is something we, as a field, need to continue to work on in terms of how the public perceives us. I do hear anecdotally that more and more school systems are integrating some form of peer mediation into their curriculum, and that makes me feel hopeful.

The movement to online mediation has also been fascinating to watch. When the pandemic hit, I was sure that I would be out of a job because I was someone who thought the process could only be offered effectively in person. I quickly learned that remote mediation works, and for many, it dramatically increases access to the process and reduces the cost of participation. There are challenges to remote mediation too—but from what I’ve seen, online mediation appears to be the new default.

Are you seeing students now going into mediation and ADR after having their eyes opened in such a robust program like yours? 

Cardozo has a number of mediation clinic alumni working full-time in the field of dispute resolution, but most go on to practice as attorneys. We do hear from clinic alumni that they are using the skills they learned as mediators in all aspects of their professional and personal lives. They tell us that their experience as mediators makes them better listeners and better communicators and improves their ability to work effectively with clients.

Taking on the role of a neutral forces all of us to challenge our assumptions and do our best to develop empathy and understanding for everyone on both sides of a conflict. It’s exciting when you see that realization click for the students, and it’s my hope that they will carry that with them.

Check out our other interviews: Resolving Litigation: Psychology, Insurance and Diversity in ADR