Electronic copy available at: http://ssrn.com/abstract=2529146

1

Learning to Mediate through Teaching

Mediation*

Thomas McMorrow**

Introduction

I. Teaching Family Mediation: Situating the Subject Matter of the Course

II. Mitigating the Managerial Impulse, Mediating Roles, and Reframing Relationships

III. The Classroom as Site of Conflict

Conclusion

*This article is a substantially revised version of a paper delivered to the Canadian Association of Law Teachers,

June 2013, Victoria, British Columbia. I would like to thank participants at that conference and the following people

who read and commented on various iterations of this text: Sasha Baglay, April Bateman, Andrée Boisselle,

Suzanne Bouclin, Patricia Hania, Ivana Isailovic, Barbara McMorrow, Michael McMorrow, David Sandomierski,

Andra Striowski. I would also like to thank my colleagues in the Legal Studies program at the University of Ontario

Institute of Technology for rich discussions pertaining to some of the ideas presented in this paper. Finally, I would

like to thank the three anonymous reviewers for their helpful feedback. While I am grateful to all of these

individuals for assisting me in strengthening the quality of this article, responsibility for any persisting frailties is my

own.

** Assistant Professor of Legal Studies at the University of Ontario Institute of Technology

October 31 2014

Electronic copy available at: http://ssrn.com/abstract=2529146

2

Introduction

To study law is to learn about the methodologies and justifications human beings adopt when

drawing on forms of social ordering to govern their lives together.1 By developing this normative

literacy, a student becomes conversant in the legal languages through which social, political and

economic power purport to be legitimated. One gains insight into how and why human beings

draw on and re-create normative symbolisms in the course of their interactions. Acquiring such

fluency enhances one’s ability to participate in the elaboration of norms, institutions and

processes that reflect just orderings of human interaction, while resisting the imposition of those

that are unjust.2

Notwithstanding the variety of forms of social ordering, adjudication retains pride of place in the

curricula of law schools and legal studies programs. Outside of expressly designated Alternative

Dispute Resolution courses, the tacit, supplementary title of law courses tends to be “and

adjudication”: Torts and Adjudication, Contracts and Adjudication, Criminal Law and

Adjudication etc. Even courses designed to explicitly repudiate what mainstream accounts of law

posit as its foundations often implicitly replicate their assumptions about law’s architecture.

Letting adjudication stand as a surrogate for legal ordering itself implies that other forms of legal

ordering upon which human beings draw to work through conflict—such as mediation— are, at

best, ‘law lite’.

The problem, though, is neither the identification of law with adjudication nor recourse to the

appellate case method in legal education, but the presumption of their necessity. The real culprit

is a failure to foreground the role of human agency in how one conceives law and legal

education.3 Among the variety forms of legal ordering, the one in which those subject to the

decision produced have the most limited influence, is managerial direction.4 In contrast, the most

directly participatory form of social ordering is that of mediation5. Parties participate in

mediation by negotiating with and accommodating each other. Rather than comply with an

1 Fuller describes forms of social ordering as “ways of reaching decisions, of settling disputes, of defining men's

(sic) relations to one another:” Lon L Fuller, “The Forms and Limits of Adjudication” (1978-79) 92 Harv L Rev 353

at 363. In addition to mediation, forms of social ordering include a wide range of activities: legislation, adjudication,

contract, custom, negotiation, voting, and deliberate resort to chance. See Kenneth Winston, “Introduction” in The

Principles of Social Order: Selected Essays of Lon Fuller, Revised Edition (Oxford: Hart Publishing, 2001). 2 This means imagining law as dynamic and plural, rather than static and instrumental; recognizing its very

possibility as contingent on a community of interests, not simply the unilateral imposition of power; and identifying

its purpose less with social control than the facilitation of individual human agency. This view reflects insight from

the literature on legal pluralism, especially critical legal pluralism. For a conspectus of various approaches to legal

pluralism, see Emmanuel Melissaris, Ubiquitous Law: Legal Theory and the Space for Legal Pluralism (London:

Ashgate, 2009). For an elaboration and defence of ‘critical’ legal pluralism, see: Roderick A. Macdonald, “Custom

made: An Argument for a Non-Chirographic Critical Legal Pluralism” (2011) 26 Can JL & Soc 301. 3 See: Fuller’s critique of a ‘managerial conception of law’: Lon Fuller, The Morality of Law, 2

nd ed. (New Haven:

Yale University Press, 1969) at 204-209. Taking this critique seriously means questioning the extent to which the

vices of a managerial conception of law may be resisted in one’s theory and practice of law teaching. 4 Fuller distinguishes each form according to the manner in which the affected parties participate in the decision-

making process; for instance, when it comes to adjudication, litigants participate by presenting proofs and reasoned

arguments to an impartial third-party who makes a binding decision: Lon L Fuller, “The Forms and Limits of

Adjudication” (1978-79) 92 Harv L Rev 353, passim. 5 In mediation, there is also an impartial third-party but unlike an adjudicator, a mediator has no decision-making

authority: it is the parties themselves who come up with the decision, see: Lon L Fuller, “Mediation: its Forms and

Functions” (1971) 44 S Cal L Rev 305.

3

imposed set of directions, the parties—with the help of a third-party facilitator— negotiate a set

of norms by which to guide their future interactions.

Just as mediation represents an agency-enhancing form of legal ordering, adopting the lens of

mediation reveals ways in which law teaching may serve to facilitate student agency. Rejecting a

managerial conception of law teaching and embracing a vision of the teacher as mediator

acknowledges that the manner in which both teacher and students engage in working through

conflict is at the very heart of legal study. Viewed through the lens of mediation, conflicts that

law teachers encounter— both with students and within themselves— become re-presented as

teaching and learning opportunities. Because one teaches law both through exhortation and

example, how one teaches may serve to either sustain or undermine a vision of law that fosters

human agency and serves to liberate human potential.

In other words, one’s manner of teaching should be consistent with the substance of what one is

trying to assist one’s students to learn. To help students to understand the significance of

mediation in learning about law, and the significance of legal study to learning about themselves

and the world, the ends must inform the means. These ideas ought to animate one’s approach to

teaching itself. I hope to show how one can, and why one should, incorporate the insights offered

by the subject of family mediation by embracing the role of teacher as mediator. Drawing on my

experiences teaching Family Mediation, I demonstrate what it could mean to conceive law

teachers as mediators. Although I specifically draw from my experience teaching Family

Mediation within an undergraduate Legal Studies program, I believe that—by presenting both

law and education as purposive, relational endeavours geared toward facilitating human

agency— mediation offers an insightful frame in which to view law teaching within any number

of sites of legal education, including law schools.6

I Teaching Family Mediation: Situating the Subject Matter of the Course

Teaching Family Mediation provides an opportunity to introduce students to ways of thinking

about how human beings create and draw on the institutions, processes, and norms of law—

whether they are formal and explicit or informal and implicit—to live in relationship with each

other. In Family Mediation, we focus on recourse to professional mediation upon the breakdown

of spousal relationships.7 After introducing the relationship between mediation, family law, and

the legal system, the aim in the first part of the course is to situate mediation in its wider socio-

legal context. How recourse to alternative dispute resolution reflects objectives and insights of

the access to justice movement is examined first;8 then, drawing on the work of Lon Fuller,

6 That is to say, of greater salience than the nomenclature or institutional forms legal education adopts are the

substantive questions upon which legal study engages reflection, such as: “how human beings organize knowledge”

“the forms and limits of institutions” and “issues of justice”; see: Roderick A Macdonald, “Does Law Have a Place

in the University Or Every Great University Needs a Legal Studies Programme” (March 7, 2012). LSE Legal

Studies Working Paper No. 4/2012. Available at SSRN: http://ssrn.com/abstract=2017427 or

http://dx.doi.org/10.2139/ssrn.2017427 7 Thomas McMorrow, “Family Mediation 3600-001 2014 Course Syllabus” (University of Ontario Institute of

Technology) [on file with the author]. 8 See: Warren Winkler, “Access to Justice, Mediation: Panacea or Pariah” (2007) 16 Canadian Arbitration and

Mediation Journal 5. On access to justice more generally, see Julia Bass, WA Bogart & Frederick A Zemans eds.,

Access to justice for a new century : the way forward (Toronto: Law Society of Upper Canada, 2004).

4

mediation and adjudication are compared and contrasted as ‘forms of social ordering’.9 The

values and commitments underpinning adjudication and mediation are explored in depth.10

Next,

the role of ‘conscious conversation’ in identifying and responding to conflict is examined.11

The broad themes explored in the first part of the course are intended to provide students with a

theoretical background before probing such topics as the implications of intimate partner

violence for the design and choice of conflict resolution processes;12

mitigating the impact of

family breakdown upon children;13

and child inclusive mediation.14

Students are then introduced

to ‘transformative mediation’ and critical treatments of that theory.15

Students are invited to

engage in analyses of the legitimacy and effectiveness16

of family mediation, to identify ethical

9 See: Kenneth Winston ed., The Principles of Social Order: Selected Essays of Lon Fuller, supra note 2.

10 See Owen Fiss, “Against Settlement” (1984) 93:6 Yale Law Journal 1073; see, contra: Robert A Baruch Bush,

“Mediation and Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation” (1989-1990) 3 J

Contemp Legal Issues 1. 11

See: Mark Gerzon, “Conscious Conversation” in Leading Through Conflict: How Successful Leaders Transform

Differences into Opportunities (Boston: Harvard Business School Press, 2006), 141. 12

Feminist critiques of mediation emerged in the early 1990s; see: Tina Grillo, “The mediation alternative: process

dangers for women” (1991) 100:6 Yale Law Journal 1545. Research on the implications of intimate partner violence

and its particular risks for women is canvassed in Susan Landrum, “The Ongoing Debate About Mediation in the

Context of Domestic Violence: a Call for Empirical Studies of Mediation Effectiveness” (2011) 12 Cardozo J of

Conflict Resolution 425. Noel Semple argues that it is the ‘settlement mission’ which also pervades the court

process, not only its reflection in mediation practice, that requires attention and reform: “Mandatory Family

Mediation and the Settlement Mission: A Feminist Critique” (2012) 24:1 Canadian Journal of Women and the Law

207. 13

One study of how well parents communicate to their children regarding the immediate and long-term changes in

family structure, living arrangements, and parent-child relationships arising from marital breakdown found that

“23% of children said no one talked to them about the divorce, 45% said they had been given abrupt one- or two-

line explanations (‘Your dad is leaving’). Only 5% said they had been fully informed and encouraged to ask

questions:” Joan B Kelly & Robert E Emery, “Children’s Adjustment Following Divorce: Risk and Resilience

Perspectives” (2003) 52 Family Relations 352 summarizing the findings of “Family lives and friendships: The

perspectives of children in step-, single-parent, and nonstop families” (2001) 15 Journal of Family Psychology 272. 14

Both the rationales for and some potential methods of including children in the mediation process are explored in

Jennifer McIntosh, “Child-Inclusive Divorce Mediation: Report on a Qualitative Research Study” (2000) 18:1

Mediation Quarterly 55. 15

On ‘transformative’ mediation, see: infra note 33. 16

Jo Daugherty Bailey & Susan P Robbins, “Couple Empowerment in Divorce: A Comparison of Mediated and

Nonmediated Outcomes” (2005) 22 Conflict Resolution Quarterly 453.

5

challenges,17

including issues of justice and fairness raised by the mediation process,18

and to

evaluate various approaches to ensuring mediator accountability.19

This is an overview of ‘what’ I aim to teach in Family Mediation. Before expanding on the ‘how’

in sections II and III, I first wish to highlight how my philosophy of teaching parallels my

philosophy of law. It is an idea of law that foregrounds the question of human agency—an idea

that has found expression in the writings of Lon Fuller. Describing the relationship between law

and freedom—or the processes of social ordering and human agency— Kenneth Winston,

observes that for Fuller:

The overarching concern is how to achieve effective self-rule, both individual and

collective…The upshot is that freedom consists in the availability of the structures and

practices by which each citizen’s choices are brought into meaningful relation with the

choices of other citizens. To be free is to be enfranchised in this broad sense, that is, to be

empowered to participate in collective self-governance. Legal institutions are the

processes through which one’s choices are expressed and become realized.20

Human beings rely on each other— and on the forms and processes, rules and institutions they

have developed over time—in order for their decisions to have an impact, for their choices to be

meaningful. Like a language, law provides a resource for human beings to draw upon to express

their commitments and articulate their conflicts.21

When one thinks of the law, the most likely

examples to come to mind of the institutions, processes, and justifications it offers to people

working through conflict are the courts, litigation and statutory entitlements. Each is formally

structured and explicitly created to serve just such a purpose. People go before the courts, they

17

See Carrie J Menkel-Meadow, Lela Porter Love & Andrea Kupfer Schneider eds, Mediation: Practice, Policy,

and Ethics (New York : Wolters Kluwer Law & Business, 2013). Insights into mediator ethics may be compiled

from studies in a variety of mediation contexts; for example, in the field of international conflict mediation, see:

Keith Webb, “The Morality of Mediation” in Christopher R Mitchell & Keith Webb, eds, New Approaches to

International Mediation (New York: Greenwood Press, 1988) and Robert Van Es, “Moral Compromise: Owen and

Holbrooke Mediating the Bosnia Conflict” (2002) 7 International Negotiation 169. 18

Michael Coyle’s reflections upon his experience as a mediator in Aboriginal land claim disputes is a particularly

rich resource for exploring the relationship between concepts such as neutrality, impartiality and fairness:

“Defending the Weak and Fighting Unfairness” (1998) 36:4 Osgoode Hall LJ 625. Recurrent in an inquiry into the

fairness surrounding ‘forms of private ordering’ are questions about how wider questions of social (in)justice bear

upon these processes, including the attendant responsibilities of mediators; see: Michael McCormick, “Confronting

Social Injustice as a Mediator” (1997) 14:4 Mediation Quarterly 293. 19

On the regulation of the practice of mediation, see Lene Madsen, “More than Hanging Out a Shingle:

Qualifications for Family Mediators in Ontario” 30 CFLQ 49 and Jennifer Schulz, “Mediator Liability: An

Examination of Emerging American and Canadian Jurisprudence” (2000-01) 32:2 Ottawa Law Review 269. 20

Kenneth Winston ed., The Principles of Social Order: Selected Essays of Lon Fuller, supra note 1 at 315-316.

Fuller criticizes Mill for his privileging of a negative “freedom from” over that of a positive “freedom to”

conception of liberty. That is because the conditions for, not just the conditions against specific exercises of human

agency are being created through the interactive construction of legal normativity. See: Lon L Fuller, “Freedom as a

Problem of Allocating Choice” (1968) 112 Proceedings of the American Philosophical Society 101. 21

For an elaboration of the normative typology from which I draw here, canvassing the diversity of sites and modes

through which law is both expressed and given meaning, see: RA Macdonald, « Pour la reconnaissance d’une

normativité juridique implicite et ‘ inférentielle’ » (1986) 18 : 1 Sociologie et Sociétés 47 and « Les Vieilles Gardes

: hypothèses sur l’émergence des normes, l’internormativité et le désordre à travers une typologie des institutions

normatives » 233 in Jean-Guy Belley, ed., Le droit soluble : contributions québécoises à l’étude de

l’internormativité (Paris : LGDJ, 1996).

6

litigate, and they make arguments based on the rights and duties prescribed by legislation. Of

course, that is not the whole picture; for instance, the arguments litigants make may be based on

judicial decisions made in the past (precedent), as well as social norms (custom) or underlying

legal principles, such as equality, equity or fairness.22

Just as formally expressed, explicitly

enacted law (legislation) does not provide the only basis for the kinds of legal justifications

parties make, litigation is not the only legal process related to the prevention, mitigation or

disposition of conflict.23

Constitutions, legislation and administration are all instrumental in

prescribing the manner in which social conflict is addressed; moreover, processes such as

negotiation and mediation are ways in which parties both express and respond to their

differences. Lastly, parties may have recourse to so-called ‘private’ institutions of dispute

resolution in addition to the ‘public’ forum offered by courts.24

Just as important, but less frequently acknowledged as the provision of institutions, processes

and justifications that law makes for people working through conflict, is how law provides a

language for people to transform their conflicts into disputes.25

Inchoate, complex, emotionally-

charged conflict is filtered into discrete legal issues. One example of law performing this

function is in the realm of family law. In Ontario, legislation like the Divorce Act, the Family

Law Act and the Children’s Law Reform Act (as well as the jurisprudence provided by the courts)

presents a vocabulary and grammar for translating inter-personal conflicts into legal disputes.

The intertwined layers of distrust, acrimony, frustration, resentment, disappointment, fear, and

regret, as well as of need, lust, longing, admiration, hope, forgiveness and redemption that

compose the torn fabric of a disintegrating spousal relationship are unwoven and re-spun into a

neat patchwork of legal rights and obligations. The thick, textured, interlaced strands of

interpersonal conflict are thinned out, smoothed and straightened into a set of distinguishable,

justiciable issues: spousal support; division of matrimonial property; child custody and access;

and child support. Whereas many people may go to court—and keep going to court—either

talking (or thinking) of closure, vindication or revenge, that is not the language the law speaks

22

Invocations of the principle of equality may be supported by reference to constitutional texts, such as the equality

provision in the Canadian Charter of Rights and Freedoms (as enacted by the Constitution Act, 1982, being

Schedule B to the Canada Act, 1982), whereas arguments based in the principle of equity will draw on the

jurisprudential history of the courts, and appeals to justice located in beliefs about the nature of law itself (but then

supported by references to positive legal materials). 23

For a discussion of the variety of ways in which these ‘law-jobs’ may be performed in social groups, see: Karl

Llewellyn & E Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman:

University of Oklahoma Press, 1941). Although the process of litigation may be seen to relate most directly to the

‘disposition of trouble cases’ achieved through adjudication, it also may contribute indirectly to the prevention and

mitigation of future forms of conflict through the role it plays in the development of judicial precedents. 24

For an argument justifying state recognition of private dispute resolution, in the form of religious arbitration, to

achieve public values, see: Marion Boyd, Dispute Resolution in Family: Protecting Choice, Promoting Inclusion

(2004) Office of the Attorney General online:

<http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/fullreport.pdf > . As Anver Emon notes, while

the outcry against the use of ‘Shari’a law’ in Ontario may have led to the formal abolition of religious arbitration in

Ontario, individuals may still rely on norms and concepts derived from Islamic law in the course of family

mediation: “Islamic Law and the Canadian Mosaic: Politics, Jurisprudence, and Multicultural Accommodation.”

(2009) 87:2 Can Bar Rev 391 at 393-94, 420, 423. 25

Clifford Geertz describes this as the “skeletonization of fact so as to narrow moral issues to the point where

determinate rules can be employed to decide them”: Clifford Geertz, “Local Knowledge: Fact and Law in

Comparative Perspective” in Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic

Books, 1983).

7

within a no-fault divorce regime. Courts pronounce determinations on the elements of the dispute

but often engagement in adversarial litigation itself has a more pronounced impact on the

elemental dimensions of the couple’s conflict. Moreover, a ‘clean break’ is difficult if there are

ongoing financial obligations. Where children are involved, it may be impossible, since the

courts subscribe to a ‘maximum parental contact’ principle, which poses barriers for those

desiring contact with their former spouses to be minimal.26

Shared concern for the ongoing care

of their children tends to keep even the most polarized ‘exes’ in each other’s orbit. In many

cases, therefore, as a result of divorce or separation, relationships are changed, not ended.

Antagonistic by design and expensive as a rule, adversarial litigation produces serious economic,

emotional and ethical repercussions. For these reasons, even family court judges have implored

potential litigants to treat family court as a last resort.27

Because arbitration is moulded according

to the same adversarial logic, and can be just as costly, critics of going to court to litigate family

conflicts advocate recourse to mediation instead. Rather than hire lawyers to negotiate on their

behalf, or have decisions made for them by a judge or arbitrator, parties in family mediation are

tasked with working out an agreement for themselves.28

The language of law provides a resource

as the impartial third-party facilitator aids the parties in sorting out how they plan to deal with

issues such as child custody and access arrangements, spousal support and child support

allocations, and family property divisions.

Mediation theorists stress—and experienced family mediators would attest—however, that for

the parties, the process of mediation is not primarily about deploying the language of official

state law, but of discovering one’s own voice, while learning to listen to the other’s, in order to

define the norms that will govern the interactions between them (as well as their children and

potentially others) following dissolution of their spousal relationship. Thus, Fuller writes: “the

central quality of mediation” is “its capacity to reorient the parties towards each other, not by

imposing rules on them, but by helping them to achieve a new and shared perception of their

relationship, a perception that will redirect their attitudes towards one another”.29

Mediation is a

legal form that departs from the logic of ‘legalism’; that is, the “ethical attitude that holds moral

conduct to be a matter of rule following, and moral relationships to consist of duties and rights

determined by rules”.30

Participating in mediation re-directs the inquiry from “what must we do

to comply with ‘the rules’?” to the questions of “why do we think we need rules to govern our

interactions?” and “what do we think those rules should be?”

26

For a critical feminist analysis seeking to expose the gendered effects of this formally gender-neutral principle,

see: Susan B Boyd, Child Custody, Law, and Women's Work (Toronto: Oxford University Press, 2003). 27

See: Harvey Brownstone, Tug of War: a Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities

of Family Court (Toronto: ECW Press, 2009) at 11-21. 28

Of course, even if the lawyers are not present in the mediation, they are often involved before or after the process,

either giving advice in advance of mediation or reviewing mediation agreements before they are signed. 29

LL Fuller, “Mediation: its Forms and Functions”, supra note 5 at 326. 30

Judith Shklar, Legalism (Cambridge: Harvard University Press, 1964) at 1. Fundamentally, notes Shklar, legalism

is a social outlook or ideology which involves “[t]he dislike of vague generalities, the preference for case-by-case

treatment of all social issues, the structuring of all possible human relations in the form of claims and counter-claims

under established rules, and the belief that the rules are ‘there’” (at 10). Seeing law beyond the lens of legalism is

valuable since the manner in which (a) human conflict is symbolized both constitutes, while being constituted by,

understandings of what (the) conflict is. If symbolized legalistically—that is, solely as a contest of rights-claims—

the rational possibility of a win-win situation is foreclosed.

8

Because mediation proceeds through negotiation and mutual accommodation between the parties

themselves, it more closely approximates the manner in which adults in healthy, high-affect

interpersonal relationships work through conflict together in their daily lives. This is not to say

that engaging in mediation is the only way in which adults in healthy, high affect interpersonal

relationships must work through conflict. My argument is not that mediation is an unmitigated

good or that litigation and adjudication are inherently bad. Instead, I am attempting to highlight

the virtues of a process of social ordering whose ‘legal’ character is often ignored because of a

preponderance of attention paid to patent forms of legal institutions and processes. It is an

appreciation of mediation’s virtues that affords a more searching critique of its vices as well as a

more acute understanding of the conditions propitious to its legitimacy and effectiveness.

Unless they feel like they have no other choice, people in relationships do not usually seek to

cede responsibility for their decisions to third-parties. At the same time, though, the more

invested one feels in the outcome of a decision, the less likely one will feel inclined to

compromise. Finding ways to reach mutually satisfactory outcomes in a manner that affirms the

existing relationship can be assisted thanks to the aid of an able, impartial guide. The role of the

mediator is not to steer the parties into untroubled waters but to serve as a clear-eyed look-out for

potential hazards, while reminding the parties that each is the captain of his or her own craft, and

that only they may they reach the destination they desire.

Every site of social interaction provides a forum for inter-subjective communication. Mediation

represents a deliberate attempt to shape that forum in ways that facilitate peaceful, cooperative,

voluntary, consensus-oriented dialogue. The role of the mediator is to help parties to focus on

ways of communicating that are conducive to achieving their purposes for communicating. Of

course, it is possible for one to either forget these purposes, or to resist subscribing to them in the

first place. A person may see the opportunity to communicate with one’s former spouse as an

occasion to do him or her harm, to use that person to one’s own advantage or to indulge in the

kind of stagnant exchange that habit has made familiar, even comfortable. Consequently, the role

of the mediator is not to simply leave the parties to their own devices but to work with them to

create an environment in which they can discover in themselves and in each other the tools for

engineering a new normative platform for their interactions. The sad irony of family mediation is

that while it may offer couples an opportunity to communicate better than they have done

throughout their marriage, recourse to family mediation often only comes about once the

occasion for mending the tear has passed. Parties are left to focus on the work of ensuring that, in

a material sense, neither side is walking away empty-handed, and that the loose ends are tied up

in such a manner that they will not lead to the post-dissolution relationship unravelling into the

same quarrels once again. Not every family mediation may produce a ‘settlement’ of the discrete

‘legal’ issues it is meant to ‘resolve’, but mediation offers each party opportunities to develop a

sense of responsibility for oneself and recognition for the other in the course of working through

conflict.31

Through their involvement in the process, parties to mediation may grow in ‘self-

determination’ and ‘self-transcendence’, learning more constructive ways to approach

relationships with fellow citizens in the future.32

Thus, mediation can be transformative not only

31

Joseph P Folger & Robert A. Baruch Bush, “Transformative Mediation and Third-Party Intervention: Ten

Hallmarks of a Transformative Approach to Practice” (1996) 13 MQ 263 at 263. 32

Thus, in Bush’s view, claims that mediation can be an efficiency-enhancing and cost-reducing court alternative do

not provide the strongest case for its use: Robert A Baruch Bush, “Mediation and Adjudication, Dispute Resolution

and Ideology: An Imaginary Conversation”, supra note 10 at 20. What does, rather, is mediation’s intrinsic public

9

insofar as parties shift from a state of ‘being-at-odds’ to one of ‘having-settled-their-differences’,

but as parties learn to change how they relate to each other, to the world, and to themselves.33

By presenting both law and mediation as purposive, relational endeavours, I try to show how

recognizing the variety of legal forms, official and unofficial, through which human beings may

endeavour to work through conflict highlights space for exercising human agency. As both a

process and a subject matter of a course, mediation encourages reflection on how we stand in

relationship to each other, to other people in the world, and to ourselves. It is mediation’s

transformative potential—the space it offers for individual empowerment and mutual

recognition; the extensive preparation it demands as well as the forbearance it requires; its

interactivity; the importance of posing questions and of discovering human motivations; the

ethical questions the mediator encounters; the pressure to reach concrete, measurable outcomes;

and the temptation to cut corners; the relative lack of formal mechanisms of accountability and

external transparency—that resonate with andragogy.34

Notwithstanding this ambition, I am continuously confronted by the fact that not all of my

students appear to embrace the challenges that a course in Legal Studies, such as Family

Mediation, offers. It is not just a question of how through Family Mediation one may impart a

certain set of ideas to one’s students; it is a matter of learning, so as to better perform the role of

modelling, what a mediative approach to conflict may yield through one’s own teaching.

II Mitigating the Managerial Impulse, Mediating Roles, and Reframing Relationships

Conceiving the role of teacher as mediative is to recognize that no one learns in isolation; on the

contrary, every student learns in relationship with ‘the other’—in fact, multiple others. The

‘other’ represents that student’s classmates, professors, friends, family members, and other

members of society—as well as that individual student’s past, present and future selves. It is

through each human being’s mediation of a plurality of identities that one constitutes oneself.35

It

is in learning how to be that we are.

Nonetheless, there is a strong temptation, for students and teachers alike, to embrace a

managerial conception of teaching. The idea is reinforced by how education, university and legal

study are discussed both inside and outside of the university environment. Institutionally, it is

entrenched through the top-down functioning of government, university, classrooms and other

sites of social interaction. Thanks to students, their families, governments, media outlets and

value “of providing a moral and political education for citizens, in responsibility for themselves and respect for

others:” ibid. at 12. 33

This is the argument proponents of ‘transformative mediation’ make. For the fullest statement of that theory by its

chief proponents, see: Robert Baruch Bush & Joseph P Folger, The Promise of Mediation: The Transformative

Approach to Conflict (San Francisco: Jossey Bass, 2005). For critiques of Bush & Folger’s account, see: Jeffrey R

Seul, “How Transformative Is Transformative Mediation? A Constructive-Developmental Assessment” (1999) 15

Ohio St J Dispute Resol 135 and more recently, Robert Condlin, “The Curious Case of Transformative Dispute

Resolution: An Unfortunate Marriage of Intransigence, Exclusivity, and Hype” (2013) 14 Cardozo J Conflict Resol

621. For Bush & Folger’s rejoinder to Condlin, see: “Response to Condlin’s Critique of Transformative Mediation”

(2013) 15 Cardozo J Conflict Resol 231. 34

I employ the term ‘andragogy’ as opposed to the more commonly employed word ‘pedagogy’ to underscore that

university students are adults, not children. 35

See Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge: Harvard University

Press, 1989).

10

third-level educational institutions themselves, there is tremendous pressure to demonstrate the

utility of university education—to show what a degree is worth in economic terms.36

In

responding to this challenge, a strong philosophical argument for the incompleteness of a strictly

utilitarian framework for evaluating education is necessary but not sufficient for living one’s

commitments as a university teacher.37

Contenting oneself with ‘being right’ and adopting a

dismissive attitude will not dispatch with the instrumentalist concerns that weigh heavily upon

third-level educational policy-making, administration and practice, nor will it dispel the anxieties

of students and their families. The pervasiveness of credentialism and consumerism reflected in

the ‘corporatization of the university’38

means that andragogical relationships must be nurtured

in environments that are not always hospitable to their flourishing.

Adopting the lens of mediation provides a modality or discipline through which conflicting

perspectives, expectations and values in relation between the student and ‘the other’ may be

acknowledged and engaged. When it comes to learning and teaching, conflict is inevitable, and

even desirable. The roots of conflict always lie below the surface—but so too do the bonds of

trust. When two parties are at odds with each other, the challenge, argue negotiation theorists

Fisher, Ury & Patton, is for each of the parties to distinguish between one’s position and

interests.39

That is because where positions diverge, interests may nonetheless overlap.40

When

the teacher imagines oneself as mediator, the activity of identifying and developing shared

interests rather than asserting and reinforcing fixed positions becomes paramount.

Of course, if teaching boils down to the exercise of managerial authority, then students are

subordinates with no measure of influence on managerial goals or methods, except to the extent

that maintaining a certain standard of ‘student satisfaction’ may be viewed as necessary to

36

Such a calculus does not of course represent the only (or the best) way of evaluating post-secondary education.

Richard C Levin observes: “As committed educators we know that the most profound consequence of education is

one that we cannot ‘sell’ easily to state or federal legislators or other elected officials. From our experience in the

classroom, from the light in our students’ eyes as they first comprehend a difficult idea, we know that education

improves the soul. It empowers young people with the capacity to enrich their lives spiritually and materially, to

educate their own children and to become better citizens. But the elected representatives who control the resources

that support our institutions demand more concrete answers:” “Why Colleges and Universities Matter” in The Worth

of the University (New Haven, Conn.: Yale University Press, 2013) at 96. Taking up the challenge, Levin argues that

universities and colleges are economic essentials, since they provide the educated, adaptable workforce and

innovative scientific and technological research upon which the national US economy relies, while offering the best

means of delivering the social mobility upon which the “American dream” (that is to say, the legitimation and

therefore, ongoing functioning of its particular brand of capitalist democracy) rests. 37

Generally, see: Amartya Sen & Bernard Williams eds., Utilitarianism and Beyond (Cambridge; New York:

Cambridge University Press, 1982). For an argument as to the limitations of a single utilitarian world view, see the

contribution by Charles Taylor, “The Diversity of Goods” ibid at 129; also, see how Amy Gutman addresses the

question, “What’s the use of going to school?” in her essay of the same name: Ibid., at 261 . 38

The literature on this phenomenon within Canada and around the globe is extensive. See, for example, Denise

Doherty-Delorme and Erika Shaker (eds), Missing Pieces II: An Alternative Guide to Canadian Post-Secondary

Education (Ottawa: Canadian Centre for Policy Alternatives, 2000); James L Turk ed, The Corporate Campus:

Commercialization and the Dangers to Canada's Colleges and Universities (Toronto: James Lorimer and Company

Ltd, 2000); Derek Bok, Universities in the Marketplace: The Commercialization of Higher Education (Princeton:

Princeton University Prress, 2004); Margaret Thornton, Privatising the Public University: The Case of Law

(London: Routledge, 2012). 39

Roger Fisher, William Ury & Bruce Patton, “Don’t Bargain over Positions” in Getting to Yes (2d ed) (New York:

Penguin, 1991) at 3-14. 40

Ibid.

11

achieving management’s objectives efficiently. I present the following litany of student

complaints in order to highlight the limitations a managerial approach to conflict imposes. I

have either heard these complaints directly from my own students (usually in the form of course

and teacher evaluations) or from colleagues who have received them from theirs. Analyzing the

substance of these complaints is helpful for flagging potential areas of contention in course

design and andragogy. The way a managerial approach consigns student participation to the

confines of a complaint box forecloses opportunities for teaching and learning, by students and

teachers both. A mediative approach to conflict helps to reframe expressions of dissatisfaction as

opportunities for students and teachers to reimagine and reframe their andragogical relationship.

Student complaints41

The readings are boring

There is too much to read

Classes don’t relate to the readings

Class is too long

There are too many class discussions

There isn’t enough class discussion

It’s always the same people speaking during class discussions

The lectures are confusing

The professor doesn’t lecture enough

The professor talks for too long

The professor uses too many big words

There isn’t enough information in the PowerPoint Slides

The PowerPoints aren’t colourful or eye-catching

There’s too much writing in the course

There aren’t enough video clips

Sometimes all we do is watch a film and have a class discussion

Too much of the material is abstract; there’s not enough practical content

41

Of course, the form and substance of any set of complaints reflects the environment in which they are made, as

well as the backgrounds of the members within that environment. I have chosen to focus upon complaints that relate

to course design and andragogy. Institutional issues such as scheduling, course selection, and program offerings are

left out, even though these are evidently related. Instead, I wish to concentrate on expressions of student

dissatisfaction with their classroom experience.

12

The professor marks too hard

The grading is unfair

It takes too long to get our grades back

It’s not clear how to get an “A”

I attended all the classes, did all the readings, worked hard and only got a “B”

A mediative approach requires plumbing positions for underlying interests, excavating opinions

for perspectives and digging past preferences for values. Rather than adopting either a meek or

defensive posture, one should begin by asking: what are the specific areas of contention such

complaints reveal?

Five themes may be teased out. First, grades: whether the grade given by the teacher accurately

represents the quality of the student’s performance. Second, workload: in relation to the quantity

of student workload, a student may feel that the students in the course are being expected to do

too much; in relation to quality, a student may consider the nature of the work assigned as either

too mundane or too complex. Third, activities: students may be discontent with the kinds of

activities pursued in class or specific aspects of one or more of them; for example, class

discussion, group work, student presentations, lecturing, deliberate periods of silence, watching a

film, listening to music, going on a field trip. Fourth, assessment: this pertains to the manner in

which student learning is assessed; thus, it involves what students are expected to do (which in

turn concerns the substance and form of the instructions students are given for assignments and

in-class activities). The question of assessment also involves how students are expected to

complete their assignments, which may involve the selection of evaluation criteria as well as the

communication of those criteria to the students. Furthermore, the manner in which the

assessment is communicated to students may also be a point of contention. As for form, in

addition to “letters, numbers, or pass/fail”, the language used, the tone adopted, and the timing of

the feedback are all relevant. As for substance, this includes how constructive the feedback is

and how helpful it is to the student in this course and in other courses one takes and beyond.

How the weighting of various assessment components relates to the amount of time and effort

the work being assessed has taken, as well as how equipped students feel in satisfying the

assessment requirements may give rise to objections. Fifth, and finally, communication of course

content. Is the manner in which course content is delivered clear, organized, accessible,

thorough, engaging? Is the choice of course content (i.e. the aspects of the subject that are

targeted for inquiry) good (appropriate to year-level, consistent with program curriculum,

disciplinary norms, university aims, student expectations, professors’ aspirations)?

Attending to student complaints is but one dimension of the process of developing a dialogical

relationship with one’s students.42

Indeed, an enriching andragogical relationship hinges on

42

Student evaluations of teaching effectiveness or course evaluations (SETs) are often the primary way in which

university teaching is evaluated, but they are often employed to serve summative rather than formative purposes.

See: Pamela Gravestock & Emily Gregor-Greenleaf , Student Course Evaluations: Research, Models and Trends

(Toronto, ON Higher Education Quality Council of Ontario, 2008). One reason is that they are often administered at

the conclusion of a course. To address this, I administer, informal feedback forms, asking students “What can I do to

enhance your learning?” and “What can you do to enhance your learning?” half-way through the semester. This

13

fostering opportunities for, and cultivating attentiveness to, students acting as partners, rather

than mere recipients of their education. The assumption that it is only teachers who do the

teaching is reinforced when it is the teacher alone who provides and presents the material, as

well as prescribes and performs student learning assessment. Identifying assessment criteria

through consultation with students and asking them to assess their own work based on those

criteria presents one way to destabilize preconceived notions about the division of labour in the

classroom. ‘Seeing it from the other side’ helps students to think beyond the passive role with

which they may associate being a student. Faced with the problem of many students either

attending class unprepared or not showing up at all, I was loath to ‘award’ students marks for

participation. I did not want to reinforce among my students the very instrumentalism I inferred

was hampering their full, voluntary engagement in the first place. I believe that I have discovered

a valuable way of balancing these concerns. By elaborating participation criteria with students on

the first day, then asking them to assess their participation in light of those criteria and to provide

me with a proposed grade and accompanying explanation—once half-way through the term and

again at the end—the process of evaluating participation can be transformed from a one-sided,

summative assessment, to a dialogical, formative assessment practice.

To act in concert with others, people need parameters; hence, family mediators recognize the

importance of parties establishing ‘ground rules’ and educators acknowledge the need for order

within an institutional learning environment. Mere existence of an order is, of course, no

guarantee of its justness. Any order’s potential to be just depends on those subject to it feeling

both implicated in and responsible for it being so. Yes, people need parameters but parameters

also need people. Unless individuals feel invested in and responsible for the construction,

referencing and revising of the rules governing their interactions, some combination of carrots

and sticks will be crucial to keeping them corralled. The model of teacher-mediator presents

students at the centre of the educational endeavour. Just like a mediator cannot agree ‘for’ the

disputing parties, a teacher cannot learn ‘for’ his or her students. The cooperative endeavour that

is an andragogical relationship involves students becoming informed, critical, expressive partners

in their education. This cannot just be willed by the teacher; it must be learned by each individual

student.

Law teachers may not always succeed at putting into practice ways of teaching that are

consistent with the interactional and agency-enhancing thrust of mediation. The teacher as

mediator does not forsake one’s other social ordering roles; rather one learns to mediate those

roles so that none of them comes to trump commitment to fostering a healthy andragogical

relationship with each of one’s students. For being a teacher may involve performing the roles of

legislator, adjudicator, poll-taker, negotiator, administrator, and manager.

Mediation’s effectiveness and legitimacy are, to an extent, contingent on the competence and

authority of the mediator. The degree to which a mediator may be said to demonstrate such

qualities in a specific situation depends in turn on the understandings and beliefs of the parties

involved. At the same time, the effectiveness and legitimacy of mediation hinge on the nature of

way, the opportunity to enhance the teaching and learning experience is not deferred to a future class. For a review

of scholarly research, which nonetheless neglects the question of whether and how universities can and should

support students in completing these surveys by providing them education in learning theory and educational

philosophy, see Mary Kelly, Student evaluations of teaching effectiveness: considerations for Ontario universities

(Council of Ontario Universities, 2012).

14

the problems, circumstances and goals involved. Some contexts lend themselves better to

mediation than others. It is not simply the limitations of individual mediators that define the

limits of mediation. Each process of social ordering works best under different conditions. But it

is not just a matter of knowing the range of processes available and the type of situations in

which they will or will not work. Deciding when to try to mediate and how, constitutes a

complex, dynamic activity. It is not a question of robotically performing a series of discrete

tasks, like filling out a spreadsheet. In fact, it is a matter of exercising practical wisdom in

decision-making—an activity shaped by one’s knowledge, understanding, experience,

commitments, and aspirations, as well as one’s ignorance, biases, anxieties, habits, and feelings.

As a professor, discussing with an individual student what he or she wants to do in the future,

one performs the role of counsellor. When deciding whether a student has committed an

academic offence, such as plagiarism, one is acting as an adjudicator. Drafting a course outline

that sets a framework for the course, identifying what students are expected to do and what they

can expect from their professor in turn, one discharges the role of legislator. Gathering opinions

on student interest in a particular topic in a course, one functions as a poll-taker. There are

aspects of teaching a course that are, of course, administrative, and sometimes trying to persuade

students to engage in class discussion can feel like a real negotiation; and it is. But teaching is

more than the discharge of these roles; performance of these roles is itself potentially

transformative. In an andragogical relationship, a teacher teaches and learns while students learn

and teach.

If it may be determined that the skills needed to perform this role are unevenly developed among

the student population, then teachers do indeed have their work cut out for them. But whoever

said teaching wasn’t work? And what could be more valuable than the endeavour to contribute to

each student’s learning? Rather than throwing one’s hands up at how ill-prepared and

unequipped one’s students are, teachers should try to grasp what it is one can do to help them.

When students are weaned on a steady diet of instrumentalism in their approach to schooling by

their parents, teachers, peers, the media and other disciples of the ambient consumerist culture,

what is offered as intellectual nourishment may very well be considered distasteful. Rather than

completely ignoring or fully accepting the hierarchical nature of the formal relationship between

professors and students, one may try to discover ways to counteract the manner in which students

are conditioned to be passive about their own learning. Rather than colluding with, by way of

complaining about, student apathy, one may begin by asking: what meaningful opportunities do

students have to influence their educational experiences?

To mediate one must listen— not only to what the parties are saying but also for what they are

not saying. By asking questions, skilled mediators can help parties articulate thoughts and

feelings, interests and objectives, that they are either unaware they wish to express or that they

believe they are expressing already but are not in fact doing so effectively. By re-stating what

parties have articulated, mediators can help parties to re-frame their positions in ways that reflect

the interests they share with each other. The teacher as mediator recognizes that the challenge is

not just that of offering quality content, or of improving the efficiency of its delivery. It means

finding ways to facilitate students in the journey to becoming learning collaborators. This means

creating conditions conducive to inter-subjective communication oriented toward learning.

III. The Classroom as a Site of Conflict

15

To fulfill its potential as a genuine learning and teaching environment, a university classroom

must be an empowering, imaginative, creative space; to be so, the classroom must not only be a

place in which conflict is confronted, but one in which it is created. Creating conflictive

situations enables students and teachers to learn how conflict is experienced, characterized and

resolved. In this way, students do not only learn the value of mediation, they learn more deeply

how to apply the insights reflected in the prudent use of mediation in their everyday lives.

Conflict is consciously created in:

The assignment of readings that represent different ways of identifying and

addressing social-legal problems

The facilitation of classroom discussion where opinions, ideologies and

interpretations clash

The providing of opportunities for student engagements with the professor, fellow

students and others inside and outside the classroom through which diverging

perspectives and experiences are expressed

The expectation of individual reflection, as well as oral, written and artistic

expression through which conflict is addressed

The assignment of collaborative exercises through which students experience the

various forms of inter-personal conflict that can arise in the course of group work

The introduction of field trips and other ways of bringing the world into the

classroom and the classroom into the world that provide occasions for de-stabilizing tidy

pre-conceived notions about ‘the ways things are’

Deliberately creating conflict is a teaching and learning strategy in a world in which much of the

conflict human beings experience is not deliberately created at all. As the old adages goes, “most

conflict emerges not from the intentional use of fists but the inadvertent bumping of elbows”. A

classroom provides an environment in which teacher and students can take a step back to reflect

upon the causes and consequences of conflict. Questions of conflict with which an individual

may be confronted in a jarringly unexpected fashion outside of the classroom may be explored in

a deliberate, dialogical manner within the classroom. Providing an atmosphere at a remove from

the high level of urgency and intense emotion that individuals embroiled in conflict often

experience, the classroom can provide the climate of emotional sensitivity, intellectual discipline

and mental concentration conducive to reasoning through alternative ways of understanding,

experiencing and approaching conflict.

In creating these conflictive situations, there are several factors to consider: How can the safe,

supportive environment necessary for learning be cultivated, protected and preserved? What

resources are students being provided for responding to these situations? What opportunities are

they being given to reflect on these experiences and to learn from them? What occasions are

there for self-, peer- and professor-produced assessment of—and for— that learning?43

What

opportunities do students have for sharing—and importantly, for teaching what they have

learned?

43

See: David Boud & Nancy Falchikov, “Aligning assessment with long-term learning”(2006) 31:4 Assessment &

Evaluation in Higher Education 399.

16

I emphasize from day one in the course that the course activities are not just about family

mediation, engaging in them also provides an occasion for developing and demonstrating the

very insights participation in the course is meant to foster. I present students with dramatized

examples of spousal conflict, by showing them a series of clips from the film, Kramer versus

Kramer. I ask students to identify in these scenes what they see as barriers to communication

between the couple, as well as strategies the actors adopt to improve their communication. Later

on in the course, I ask students to draw on family court cases to develop their own family

mediation scenarios and simulate a mediation of the conflict in front of the class. When students

create, perform, and then discuss these conflictive situations they learn about the contingencies

upon which the characterization of conflict rests. Further on in the course, they are asked to do a

similar exercise—this time, though, the fact scenario they adopt should feature the presence of

domestic violence. This is an opportunity to demonstrate what they have learned about power

imbalances, gender relations, as well as mediator strategies and techniques in these charged

contexts, through role-playing. As a group, students submit a written reflection on how they

carried out the andragogical aims of the assignment. Although I assign a grade to the group as a

whole, each individual’s grade is determined by factoring in the self- and peer assessments that

the students have completed, based on criteria we have identified together as a class. By doing

group activities such as these, students have the opportunity to practice the negotiation and

mediation skills explored in the course. Not only is this opportunity highlighted when the

assignment is introduced to them; after the students have completed the group projects, we

discuss as a class instances where conflicts arose within the groups and how group members

responded to these conflicts.

I also try to facilitate student learning collaboration by giving them fifteen minutes at the end of

a three-hour class to post responses to a question intended to link various strands of the subject

presented that day. Students have the opportunity to read each other’s posts and engage in a

dialogue beyond the walls of the classroom. By monitoring these on-line discussions, I can

incorporate the points of divergence they reveal when planning the next class. Of course, the

kinds of conflict that arise in classrooms are not merely abstract, imagined or simulated. As

much as the classroom may serve as a setting for intellectual retreat from the workaday world,

the classroom is part of the ‘real world’ and the ‘real world’ is part of the classroom too. Material

conditions, representing institutional and political priorities, inform what can be done in the

classroom. They are not, however, determinative. Such institutional and political priorities can be

resisted, re-imagined and reconstructed. The challenge is to respond meaningfully to the

instances of unreconstructed conflict that teachers and students experience as teaching and

learning opportunities as well.

An appreciation of the diverse identities possessed by both individual university students and

teachers reveals more about the nature of the conflicts they experience. Thus, one must ask: what

other identities and obligations do students have? Student may be: graduate school, law school or

job applicants. They may be plaintiffs in civil proceedings or defendants in criminal ones. They

could be victims or perpetrators of intimate partner violence or workplace harassment. Students

may have: strict religious obligations, work-related duties, strong emotional needs, dire financial

problems, mental health challenges, issues with their physical health, significant family

commitments, strong senses of obligations to peer cultures, and aspirations to be artists.

17

Many of these identities, obligations, commitments and needs are held by professors (and

administrators too). These competing commitments and obligations do not just help to explain

clashes of expectations, perspectives and values regarding what legal study is or should be, and

what it does or should entail for professors and students. The manner in which conflicts are

addressed has an impact upon the ways in which these identities, obligations and commitments

are lived. Ways of symbolizing and working through conflicts within an andragogical

relationship ignore that students and professors study, teach, live and learn while in relationship

with others, at their peril.

Students, professors and even administrators have multiple identities: dreamers and planners,

self-identified high- and low-achievers, victims and offenders, atheists and devout believers,

entrepreneurs and unemployed labourers, little babies and wise elders, sufferers and healers,

daughters, sisters, fathers, mothers and brothers, friends and lovers, guitar players, gamers and

break-dancers, poets and drawers. People come to us as they are. The foremost question in

developing an andragogical relationship for a teacher, is what can one do to try to make sure

each student is better off for it?

Near the end of a course, I received a very critical set of comments on one of the unofficial

anonymous feedback forms I administer. Not only did I detect a mocking tone, I saw the student

had signed with his full name, student number and a smiley face. My initial reaction was one of

anger. I read the comments, and thought of how the student regularly took breaks each class and

was reluctant to ever engage in class discussions. Rather than speak to the student, I reasoned

that he was just trying to bait me and that I should just not let it bother me. After all, I thought

‘you can’t please everybody’. In retrospect, I missed out (and he missed out) on what may have

been a rich teaching and learning opportunity for us both. It is impossible to say for sure, but I do

know this: by choosing to avoid the conflict, I elected the path of least resistance in my response

to it. It may have felt like the most comfortable choice to me, but if it was the one the student

wanted, he would not have signed his name on the anonymous survey.

In life, each person must contend with conflict, while mediating multiple identities and

negotiating competing obligations and commitments. There is no such thing as value-free

education, but there is an important difference between teaching and brain-washing. In teaching

a subject one may in important respects being teaching oneself, but it should not be so as to

reproduce clones—to make one’s students replicas of oneself. If the lessons students learn are

not the ones their teacher intends for them to take away—that’s the risk of a genuine

commitment to facilitating student agency.

Fostering creative contributions to course design, andragogy and assessment enables students to

take a more active role in their educational experience as well as responsibility for their own

learning. This is realized most fully when the student takes on the role of teacher oneself,

including the mediational challenges it connotes. In addition to the inherent value of sharing

one’s knowledge with others, there is no stronger motivation for learning a subject than knowing

one has to teach it. At the beginning, that may be because one is afraid of looking foolish or

being ‘found out’ as an impostor. Later it has to do with recognizing that knowledge of the

subject helps one to be a more competent and confident teacher. Thus becoming a genuine

teacher signals a shift in priorities: from being able to demonstrate one’s own knowledge of the

subject to enabling students to demonstrate theirs. Students learn when they teach; they are also

learning when they are: reading, listening, watching, doing; thinking, synthesizing, creating,

18

expressing; answering, questioning, arguing, judging; developing views, experiencing insight,

changing their minds; feeling frustrated, disappointed, excited, inspired, disturbed, de-stabilized,

affirmed, challenged, accomplished and empowered.

Students perform the role of teacher more often than they (or their professors) might realize.

They teach each other; they teach family, friends, acquaintances, bosses and co-workers; they

teach themselves. They also teach their teachers. Central to the challenge for university

professors concerned with becoming better teachers is discovering how to be better students.

Sometimes life’s demands—as researcher, writer, teacher, administrator, community member,

partner, parent or grandson—can inure one to showing the kinds of openness to learning that

being a good student (becoming a good teacher) requires. Sometimes, though, an experience can

penetrate through the borders of anxiety into which our own self-centredness manages to hedge

us.

Conclusion

Law is a powerful social resource through which human beings may endeavour to symbolize

ways of seeing and acting in the world that do justice to each person’s place in it. Many human

beings have experienced forces of violence, oppression, disenfranchisement, and marginalization

under the guise of law. To study law is to learn ways to resist them. Whether a student aspires to

become a lawyer or mediator, paralegal or personal service worker, court administrator or social

worker, police officer or accountant, politician or custodian, the fundamental challenge of

learning law is the same: to develop an informed, critical understanding of the ways in which one

may contribute to developing rules, institutions, processes, arguments and ideas for facilitating

more just interactions between human beings. This means learning to identify problems of social

ordering and to examine the ways in which law may contribute to developing responses to those

problems along more legitimate lines.

Embracing the role of mediator means endeavouring to facilitate the activation, deepening and

empowerment of peoples’ better senses of self, fostering an openness to learning—and more

specifically an openness to conflict as a learning opportunity. But of course, the very prospect of

conflict can be daunting. At the end of a particularly gruelling week, I encountered a student on

the street who had missed our last two classes. I did not feel like confronting him, reminding him

of the importance of attending class, or trying to impress upon him the importance of taking his

studies seriously. I knew this fellow, though, and I was curious why he had been absent from

class. Instead of continuing on my way, I said “Hello” and commended him on the exceptional

job he had done on his mid-term exam. He had received one of the highest grades in the course,

and I remembered remarking to myself upon reading his paper upon the quality of both the

substance and style of his exam responses. He replied with thanks and apologised for missing

class.

He then explained the reasons for his absence over the past two weeks. Without doing justice to

the nuances of his story or the matter-of-fact, un-self-pitying manner in which he shared it, I will

recall these particulars: His mother was involuntarily admitted to a psychiatric hospital; his

father had not been paying the spousal support payments upon which the family was reliant; and

his youngest brother needed to be brought via public transport the three hour journey to a

hospital to have his deteriorating medical condition treated…“I finally did get Mom out…I am

19

living with Dad and his girlfriend now, trying to convince him to pay the alimony, since Mom

and my brothers really need it… I just got back from Mississauga now.”

While trying to control the strong emotions I felt welling up inside me, I said “Goodbye”— but

not before inviting him to come to see me at the end of the following week to discuss what he

had missed and to address any questions he might have. I walked away, moved deeply by the

bravery of this young man, and the great privilege, honour and responsibility it was to be his

teacher. To honour that role — to do the best damn job one can do at it — means, as much as

anything else, aspiring to have the same grace, courage, compassion and dedication as a teacher

that he, my student, has taught and continues to teach me.

So long as teachers and students of law regard conflict as anathema, they remain enchained by a

directive conception of teaching and a prescriptive conception of law. Drawing on mediation

when thinking about teaching, and therefore learning, provides content to what may otherwise be

construed as an absence of reason or authority in the exercise of a facilitative approach to

teaching. The very word “educate” means, literally, “to draw out”, which evokes a very different

image from one of “filling up”, “driving into”, or “pushing around.” While, granted, in drawing

out, it can sometimes help to give a nudge, the project of fostering conditions for learning means

providing space for experimentation, not simply regurgitation; for speaking as well as listening;

for leadership not just obedience; invention not only compulsion, and cultivation not command.

In this paper, I have argued that one’s ways of understanding law and legal education both

inform, while being informed by, how one teaches and how one’s students learn. If the purpose

of education is to facilitate human agency and the purpose of human agency is to seek the good,

then the purpose of studying law is to learn about the ways of facilitating effective human

agency, so that each human being can contribute to this activity. This difficult, complex, iterative

endeavour is a collective project—in which everyone is implicated. Crucial to the argument of

conceiving the teacher as mediator rather than manager is acknowledgement that students are

learning law while all the while in relationship with ‘the other’. The teacher as mediator acts as a

model for his or her students by demonstrating how to mediate between one’s various selves,

which are variously multiple in the past, present and future. To be taught well is to be introduced,

grace of the teacher, to ourselves. Unwittingly perhaps, this is what my student in that brief

exchange we had, had done for me.

Teachers and students learn about law’s potential roles in facilitating human agency in the

context of social conflict through their experiences of the activities of teaching and studying.

What is the best way, then, to conceive the teacher’s role in this process? Teaching rests on an

aspiration greater than satisfaction of the teacher’s own longing. Of all the things a law teacher is

trying to do—to teach analytical and critical skills; to enhance student creativity; to boost their

proficiency with the written and spoken word; to help them explore ideas, ideologies,

institutions, processes and rules—nothing is more important than actively testifying to the belief

that it is they, the students—and only they—who can learn for themselves.

Clarifying one’s objectives, communicating the intended learning outcomes, fostering an

inclusive environment, and encouraging students to question what they read, what they see, what

they hear and what they think; and to ask themselves, why?—these tasks punctuate the activities

of course design, classroom interaction, and assessment. But the act of learning ‘how to live and

20

what to do’44

is never complete.45

Learning how to live more justly is an ongoing, interactive and

intensely personal journey. Imagining the teacher as mediator means embracing the invitation

each of us has to come to a deeper understanding of what it means to recognize each of us as

having a meaningful place in the world. And it takes patience—that is, a respectful attitude to the

slow unfolding of human agency—for students and teachers both.

44

William James, “Percept and Concept -- The Import of Concepts” in Some Problems of Philosophy: a Beginning

of an Introduction to Philosophy (New York: Longmans, Green, 1911) at 243. 45

Hence Leonard Cohen in his Book of Mercy writes: “Blessed be the teacher of my heart, on his throne of patience”

(Toronto: McLelland & Steward Ltd, 2003) at 14.