The Middle Ground

Students in Professor Alexandra Carter's mediation program learn to take thoughtful, nuanced approaches when addressing previously intractable disputes. In the process, they become better advocates, more agile problem solvers, and expert communicators.

By Kristina Dell

Spring 2014

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One windy Thursday afternoon in March, nine second- and third-year law students take their seats in a horseshoe configuration around an oblong table. Preeta Reddy ’15 and Rami Totari ’15 have settled in at the front of the group. As the student mediators leading a Columbia Law School mediation clinic role-play exercise in Jerome Greene Hall’s Case Lounge, they serve as neutral parties driving the discussion in the hope of reaching a resolution to a thorny multiparty dilemma. The issue: whether an empty school building in Northampton, a fictitious and decaying manufacturing town in the Midwest, can be rented to a nonprofit corporation that would use it to operate a halfway house. Parental groups are not happy about the proposal, but the city needs the money. As Reddy and Totari lay out the details of the hypothetical, Professor Alexandra Carter ’03, the director of Columbia Law School’s Edson Queiroz Foundation Mediation Program, which was developed in partnership with the Edson Queiroz Foundation and Brazil’s University of Fortaleza, sits silently, barely noticeable in the back of the classroom, studiously taking notes.

“We’re concerned about the safety of the neighborhood,” says Russell Mawn ’15, who is representing a local PTA group that opposes the halfway house. “The city isn’t doing very well, and we’re worried this will help the decline.” Tiffany Woo ’15, who represents the center that would run the halfway house, responds with information showing that the creation of halfway houses in other areas did not tend to negatively impact crime rates in those communities.

After all the parties air their differences, Reddy and Totari call separate caucuses with the groups opposing the halfway house and the groups who are for it. “Let’s brainstorm,” Totari says to the opposition groups. “Is there any way you can use the extra space from the school that the halfway house doesn’t need to your advantage?” Reddy adds: “You mentioned putting up a partition between the halfway house and whatever else you use the space for. Could you see any way in which the halfway house and a community center could coexist?”

Appealing to parties’ interests while suggesting ideas that can move a conversation forward is an age-old mediation tactic that Carter emphasizes often, and one that Reddy and Totari use repeatedly throughout the role-play. Even their physical positioning is strategic. “We had you all sitting next to an opposing party so it didn’t become one side of the room versus the other,” says Reddy over a plate of Caribbean-style chicken, courtesy of Carter, who ordered in dinner for the group. “We always came back to the basic questions of: ‘Why are you all here? How does your interest in what you want to do with the school affect your interest in the community? How do you want to move forward?’”

All the while, Carter, a clinical professor of law and the director of clinical programs at the Law School, was paying close attention to whether her students were using critical mediation skills—such as stroking (confidence building), reflecting (repeating back what someone said using more visual terms), and reality testing (asking how likely a proposal is to happen, or how likely it will hold up in court)—as ways to move beyond the impasse and get at the heart of what was at stake. She stresses that those methods transcend mediation work because they help lawyers understand their clients better, negotiate more effectively, and maneuver past stalemates. Right before the students launched into the mock mediation exercise, Carter shared this zinger with the group: “At the end of the semester, I will tell you how your mediation skills will affect every room you enter.” 

Later, back in Alexandra Carter’s ninth-floor office in Jerome Greene Hall, the former Fulbright Scholar provides a sneak preview of what she hinted at in class. “What students don’t often realize is that the skills they learn in the clinic will transform how they operate as lawyers, counselors, leaders in organizations, and as a person in society,” she says. “There are a wide range of roles lawyers can occupy over a lifetime—lawyer, mediator, policy maker, even designer of the actual legal systems—and it’s going to take a new, flexible, innovative type of lawyer to address the problems that arise. That’s the kind of lawyer the mediation clinic seeks to produce.”

Carter is speaking from firsthand experience. In 2002, she participated in the mediation clinic as a third-year student, and the following semester she served as a teaching assistant to Professor Carol B. Liebman, who founded the clinic in 1992. “For me, mediation gave me the tools to understand what people were saying to me in a different way,” says Carter. “That could include clients who are communicating their goals, coworkers, family, friends. I learned to respond by moving disputes forward rather than creating an impasse.”

That approach gets at one reason why Carter has become so popular among students: She takes the art and practice of mediation and makes the skills underlying it applicable to almost every area of the law—and to life. “She is always trying to keep mediation relevant and make it interdisciplinary,” says Clara Wee ’15, who took the mediation clinic this past fall and worked as a teaching assistant for Carter during the spring semester. Jessica Lee ’14 adds that Carter even encourages her students to practice mediation techniques in their personal lives. “One of the techniques useful in mediation is making a concerted effort to verbally acknowledge people’s feelings,” says Lee, who also served as a teaching assistant for the clinic. “I’ve found that the skills developed as a mediator are useful even in my personal relationships.”

When they are not rehearsing negotiation strategies with friends on the weekend, clinic participants undertake a hefty weekday mediation schedule. Students mediate civil cases in teams of two, heading to Manhattan or Brooklyn civil court at least once a week. Every other Thursday, a team goes to the Harlem Community Justice Center to mediate cases before they reach court.

The biggest and most complicated mediations the class undertakes involve federal agency cases from the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA). Carter and Shawn Watts ’12, associate director of the mediation program, take the lead in organizing the legwork as students support them on calls with judges and participate in the sit-down mediations, which can take several days. In class, students talk about the cases they mediated and engage in interactive exercises that help them master important mediation techniques.

At the beginning of each semester, Carter teaches a 35-hour mediation training over two weekends, when a handful of New York City employees interested in honing their mediation skills join students in role-play scenarios. During those sessions, employees of the New York Civilian Complaint Review Board, which investigates and mediates complaints against police officers, and employees from the Center for Court Innovation, a nonprofit organization that functions as the court system’s research and development arm, learn to ask broader questions and sharpen their communication skills. “The community members bring different perspectives,” says Watts. “It helps us have a better understanding of the issues out there that we will face.” All involved tend to enjoy those interactions, and according to Lisa Grace Cohen ’93, director of mediation at the New York Civilian Complaint Review Board, Carter’s impact on those she trains cannot be overstated. “I have had investigators take her training course and go on to become mediators, or move on to law school,” says Cohen. “And [they] say they want to pursue alternative dispute resolution because of her class.”

Alexandra Carter’s capacity to inspire those she teaches—along with her enthusiasm and ability to get parties talking—has helped her expand the clinic’s reach, both at the Law School and to real-world practitioners on the international stage. Three years ago, at the request of the United Nations Institute for Training and Research, Carter began a first-of-its-kind training program for female U.N. delegates. More recently, she was instrumental in forming a partnership between Columbia Law School and the University of Fortaleza in northeast Brazil. This past October, Brazil’s Edson Queiroz Foundation presented Columbia Law School with more than $533,000 in funding to help expand the teaching and practice of mediation and conflict resolution in the two countries.

Carter’s connections with mediation efforts in Brazil began when she was contacted by Lilia Sales, vice president for research and graduate programs at the University of Fortaleza, who was working on an in-depth review of how the U.S. handles mediation in courts. The two scholars hit it off, began an email dialogue, and later met a few times in Manhattan. Soon, they implemented an exchange between the two universities, with Brazilian lawyers traveling to New York City to learn from Columbia Law School professors. Eventually Carter headed to Fortaleza to host a series of mediation trainings for lawyers, judges, public defenders, law school students, and those practicing mediation in the corporate sector.

During the three years since that initial trip, Carter has traveled to Brazil six additional times, in some cases accompanied by other Columbia Law School professors. “[The exchange] is more than making mediation happen in court,” says Sales. “It impacts society when we implement the culture of mediation. You change the way you do law when you study mediation. A judge who had been practicing for more than 20 years took Alex’s training and told me he saw ways he could improve his work.”

In addition to introducing an international focus, the partnership with Brazil has helped grow the clinic at home, too. Funding for the program allowed Carter to hire Shawn Watts as associate director. Watts grew up in the Cherokee Nation of Oklahoma and was president of the National Native American Law Students Association while a student at Columbia Law School. He participated in Carter’s mediation clinic, and, for his final project, he designed a pilot program to train Law School students in peacemaking. Carter liked the ideas behind Watts’ project so much that, in 2013, the two teamed up and created the Native Peacemaking class, which the faculty approved as a regular, four-credit course offering with a clinical component. One highlight: a field trip to Oklahoma to be trained in peacemaking by members of the Chickasaw Nation.

Like Watts, other students have embarked on final projects that have expanded the mediation clinic experience. “We just had a student develop a project where the residential life coordinator [at Columbia University] would refer first to the mediation clinic any residential disputes they get,” Watts says. “That’s great for us because it means we can pick up more cases and prove ourselves to be more of a service to our immediate community, which is the University.” 

And students looking for guidance on how best to work through real-life predicaments, like those that arise in an on-campus residential housing community, tend to realize quickly that there is no better mediation mentor than Carter. Her passion for the field is infectious, clients respect her, and, most importantly, she gets results. “I find that people who go before Professor Carter have a good experience and both sides are happy with the results,” says Judge Lisa Sirkin, who serves as an administrative law judge for the EEOC, which refers cases to the clinic. Sirkin adds that two other law schools and an organization to which she also assigns mediations tend to not produce as many positive outcomes as Carter’s clinic: “She resolves more cases than the others.”

Both Michael Burros, regional supervisory investigator for the U.S. Department of Labor, and his boss, Teri Wigger, assistant regional administrator for whistle-blower protection programs, refer OSHA cases to the mediation clinic. Burros and Wigger noted independently that they turn cases over to Carter and her students so she can “work her magic.”

“Anyone who has been to a mediation with Alex, regardless of whether they leave with the outcome they anticipated, speaks so highly of her, how she comes to the resolution, and how respectful she is,” Wigger says, adding that even those cases that don’t reach a settlement after being assigned to the clinic for mediation come back to her in much better shape than before. “Usually the parties have a sharper understanding of the issues, so it is easier for them to resolve their dispute.”

As odd as it may seem in retrospect, Alexandra Carter’s passion for mediation started as a bit of a fluke. She applied to the mediation clinic in her third year of law school on the advice of a classmate who thought she would love it. “The first time I mediated a case as a Columbia student I thought to myself, ‘This is what I should be doing for the rest of my life,’” Carter says. “I had a very clear moment where I felt as though I had found my calling within the legal profession.”

After law school, Carter clerked for Judge Mark L. Wolf of the U.S. District Court for the District of Massachusetts before heading to Cravath, Swaine & Moore, where she worked on a team defending against a multibillion-dollar securities class-action lawsuit related to the Enron collapse.

Even while practicing as a litigator, Carter says she found herself returning again and again to the tenets of mediation because of its focus on providing people with the opportunity to solve problems for themselves. When the mediation process works as it should, she says, it is fulfilling for both parties, and the satisfaction that goes along with facilitating such agreements is one of the main reasons why Carter left firm life to teach mediation full time. “When people stop becoming passive participants in a litigation and transform themselves into active problem solvers, there is a change that occurs, even outside the mediation room,” she says. “It builds a sense of community values.”

When Carter became director of the Law School’s mediation clinic in 2008, Professor Carol Liebman, the clinic’s founder, was among those most proud. “Alex went up against really senior people and blew the search committee away with her vision for the clinic,” says Liebman, who co-taught the clinic with Carter for two years. “She has great energy and poise, and connects fabulously with the students.”

Those connections between instructor and student are on display during each session of the mediation clinic Carter leads.

Back in the classroom, on that chilly Thursday afternoon in March, the role-play exercise about the old school building in the fictional Midwest town ends with the parties on the cusp of reaching an agreement. In providing feedback, second-year student Rami Totari, one of the mock mediators, asks the group how far they think he could have gone in making tough recommendations. “I tried to ask questions that would force the parties to think critically about their positions,” he says, addressing Russell Mawn, who represented the PTA. The group confides that he could have gone even further, and Carter agrees. “You could push even more,” she says, noting that he should try to lace questions with acknowledgements of parties’ concerns so the difficult points become easier to accept. “You just need to make sure you’re subtle about it.”

Kristina Dell has written for Time and The Wall Street Journal, among other publications.

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Illustration by Shout