Professor Richard Balnave and Assistant Dean Kimberly Emery; 6 Credits; Yearlong

Students help low-income families resolve their problems using alternative dispute resolution techniques.

This yearlong clinical course is open to 2L and 3L students. Students will earn six credits – three in the fall and three in the spring. The course will focus on two alternative dispute resolution methods used to resolve conflicts involving families and children — mediation and collaborative law practice. The family disputes will include child custody, visitation, financial support, equitable distribution of property and related issues. This clinic is particularly appropriate for students who like to problem-solve and who want to enhance their negotiation skills, which are critically important in a wide variety of substantive law areas.

In traditional family law practice, lawyers represent their clients by negotiating issues or litigating the cases in court if negotiations fail. Court trials are adversarial, and the outcomes are decided by judges, rather than by the parties. The litigation model of resolving family disputes can be harmful to children and frequently lessens the parties’ willingness to cooperate as parents. In response to the shortcomings of adversarial litigation, family disputes are increasingly resolved through alternative dispute resolution, where the best interests of the child is the guiding focus of the parties and the process. In this clinic, law students will serve not as attorneys representing clients, but as neutral facilitators assisting their clients to develop mutually agreeable resolutions to their disputes.

Mediation is a voluntary, confidential process in which neutral mediators help parties to identify issues, explore options and to reach mutually agreeable solutions. Early in the fall semester, students will complete a 20-hour basic mediation training program approved by the Supreme Court of Virginia. To minimize scheduling conflicts, the training will take place during a single weekend, with one or two additional evening sessions during the week. Participation in the training is required, unless a student has completed a similar mediation training program approved by the Supreme Court of Virginia within the past two years.

Students will have the opportunity to observe several family mediation sessions before serving as co-mediators with experienced, certified family mediators to help parties in conflict. The supervising attorney-mediators will prepare and accompany law students to all mediation sessions. However, students will be expected to work directly with their clients to brainstorm and problem-solve and to take the initiative and guide their clients through the mediation process.  The clinic will partner with the local Juvenile and Domestic Relations Courts and the Mediation Center of Charlottesville to receive family mediation referrals.

In the collaborative law practice cases, law students and their supervising attorneys will provide legal representation to clients wishing to use the collaborative process as a way to resolve their family law issues. Clients of limited income will be referred to the clinic by the Central Virginia Legal Aid Society. The supervisor-law student team from the clinic will represent the referred spouse or parent, while the adverse party will be represented by local pro bono collaborative counsel. The clients and their attorneys will commit to try to resolve the existing issues through cooperation, rather than through litigation, and will sign a contract stipulating that the attorneys agree to withdraw and not to represent either party in subsequent litigation should the collaborative process fail.

In addition to the direct supervision of students involved in mediations or collaborative practice cases, instruction will be provided during a weekly clinical seminar during the fall semester. Classroom sessions will address the concepts and values of mediation and collaborative practice, including the appropriateness of these ADR methods for cases involving issues of domestic violence, psychological issues involved in resolving family disputes, the ethical issues particular to alternative dispute resolution practices, the laws governing mediation or collaborative practice, as well as the substantive law of child custody, visitation, child and spousal support and equitable distribution of property.

This clinic will provide students with the opportunity to learn and practice effective communication skills, including how to facilitate communication between adverse parties. They will improve their ability to listen non-judgmentally and to paraphrase and reframe information in a positive way. In addition, students will learn to be neutral problem-solvers who assist clients to understand their interests rather than their positions, to develop mutually agreeable alternatives, to assess proposed solutions, to provide legal information and evaluation when appropriate and to draft agreements that clearly and accurately reflect the intent of the parties.