Finding common ground

Only a small fraction of civil law cases wind up going to trial. Disputes over custody of the kids in a divorce or intellectual property rights are often better served through approaches such as mediation and conflict resolution. Known as alternative dispute resolution (ADR) methods, these options can be cheaper, quicker, and because each side works together on solutions and has the space to think creatively, there is a strong likelihood of mutual compliance with the settlement and even of conserving relationships. As such, skills in communication and even empathy are integral for new lawyers but are often underrepresented lessons in law school classrooms.

“If you go to court, a decision is imposed on you. With mediation and negotiation, you have some autonomy,” says Santa Clara Professor of Law and Dean Emerita Lisa Kloppenberg, noting that the advantages apply to both personal and corporate cases. “In Silicon Valley, people want to move fast. Disputes take up employee time and are an aggravation for people. It’s pragmatic to teach students about modern problem-solving.”

Since 2017, the conflict resolution program at Santa Clara School of Law has provided students with the skills to succeed in these high-pressure environments. Now officially called the Daley Center for Conflict Resolution, the program became endowed in July with a $5 million gift from former Oracle Executive Vice President and General Counsel Dorian Daley J.D. ’86. 

The center’s existing programming, including classes fostering skills in arbitration and negotiation; experiential learning avenues like competitions and conferences; and chances for professional development, will blossom with these increased resources. One such hands-on program is the Bates Mediation Clinic, established by John Bates, Jr. J.D. ’74 and Leor Chechik J.D. ’24 to provide students with supervised training while resolving real cases at the Santa Clara County Superior Court.

Students in the program learn that, to be a successful lawyer, active listening is just as important as being able to argue your case. Daley says that for several years of her commercial career, compared to its peers, her department of litigation and dispute resolution had very low litigation rates and resolved nearly all matters through ADR.

“Sometimes you can solve the problem by talking it out, making some compromises, negotiating a bit to try to salvage a relationship. Sometimes, the only way you can solve the problem is to litigate it to the bitter end. You should be open to both,” says Daley. “Listening is the, first and foremost, most important thing. If you can’t understand the complaint of the other party, you can’t get to a resolution.”

As an option often preferred by clients whose first languages aren’t English or who encounter economic barriers, ADR is a way to engage with the whole person—including their emotions and point of view underneath their words—on the other side of the table. Kloppenberg also sees an intersection between conflict resolution and synodality, the Catholic Church’s focus on listening and forging community across rank. 

“Everybody had a chance to speak, to encounter each other, and then to respond and reflect, and think, ‘How did that person’s view change my perspective?’” she says of the synod led by Pope Francis. “It’s very different than a court, but it’s all about the same kind of skills—listening, reflecting back, putting yourself in the other person’s shoes, trying to come to some common ground.”