Professor Scott Hughes
Professor of Law
B.A. Architecture, 1973, Arizona State University
J.D. 1976, Creighton University
LL.M. 1995, Temple University
Member of the Iowa, Michigan, and Nebraska Bars
Scott Hughes first turned to the concept of alternative dispute resolution when he was practicing law in Iowa during the farm recession of the mid-1980s. In 1999, he became Director of the UNM Law School's Alternative Dispute Resolution Program after serving as director of clinical legal education at the University of Alabama School of Law.
At UNM, in addition to teaching all levels of mediation courses, Hughes organizes a series of mediation training sessions throughout the year that are open to law students and people from many professions, including practicing lawyers, health care providers, counselors, teachers, clergy, human resources and personnel officers, and small business owners.
Prior to teaching, Hughes was in private practice in Council Bluffs, Iowa, from 1978-1993, the last 11 years running his own solo practice. After earning his LL.M. at Temple University School of Law in 1995, he has concentrated on mediation and ADR education. In that area, Hughes has taught dozens of seminars and CLE programs and participated in national meetings.
He is involved nationally with the top tier of ADR educators in an ongoing dialogue to improve ADR education and is nationally recognized for his work in confidentiality and ethics in mediation. Hughes also is a member of the Council of the Dispute Resolution Section of the American Bar Association and is an official observer for the Association for Conflict Resolution to the drafting of the Uniform Mediation Act.
Do you want to learn how to sue an attorney for malpractice? Or, do you want to learn how to avoid being sued? Take Advanced Torts in the spring! The text I have chosen for this writing seminar devotes five chapters to this often forgotten, but not insignificant subject area. We will also cover defamation, fraud, and negligent misrepresentation. We will touch on remedies for deceptive practices under consumer protection statutes, the fair debt collection practices act, and attorney deceit statutes. And, finally, we will cover interference with contractual relations, invasion of privacy, and misuse of legal process (such as malicious prosecution, abuse of process, anti-SLAPP statutes, and spoliation of evidence).
Since you took Torts as a 1L, you will come to the class with a strong foundation and will be able to jump right into choosing a topic for your paper. I will then be right with you during the entire writing process helping you to stay on schedule, editing drafts, and however you otherwise may want my help. I will also ping the trial lawyers and the defense bar for topics as I have in the past. You may pick your research topic from this compiled list if you so choose.
Alternative Dispute Resolution Externship (ADR)
Prerequisite: Completion of first year curriculum.
The Alternative Dispute Resolution [ADR] extern program places students as dispute resolvers or assistants in dispute resolution organizations dealing with mediation, arbitration, facilitation, and summary jury trials.
While working with their supervising attorney, judge or ADR facilitator, students have the opportunity to gain valuable practical skills in a real world setting. The ADR Extern program is intended to supplement and complement the knowledge and experience students receive in the Law Practice Clinic and in their other law school courses. In the extern program, students have the opportunity, under close supervision, to confront actual legal problems and to analyze and explore the various roles that lawyers, judges or legal institutions play in the ever-expanding role of alternative dispute resolution. In their placements, students have the opportunity to interview and work with clients, negotiate with lawyers and others, and generally to perform and learn the various tasks and skills necessary to help a particular client or situation resolve it’s legal problems.
The ADR supervisor, with whom a student is placed, is expected to provide students with training in skills regarding the aspects of mediation, arbitration, and facilitation and summary jury trials. Students are expected to master a significant body of substantive and procedural law relative to the legal problems that they confront. Whenever ethical issues arise, the ADR supervisor is expected to explore these issues in depth with the student.
ADR extern placements are most successful when students are given as much professional responsibility for decision-making and interaction with the clients as possible and when the supervision is active and close, but not so directive as to interfere with the student's ability to exercise personal professional responsibility. The ADR supervisor should be involved in every aspect of the student's work. The ADR supervisor should be prepared to provide constructive critiques, encourage growth and development, and, if necessary, protect clients and the public from the mistakes that can be made by student lawyers. The ADR’s supervision comes before, during, and after the student works on a problem. For example, if a case is to be resolved or mediated by the student, the student presents a negotiation plan to their ADR supervisor before the negotiation, which is then followed by a post-negotiation review and critique by the ADR Supervisor.
Supervision Under Rules Governing Student Practice
Students enrolled in the Alternative Dispute Resolution Extern Program are governed by N.M.R. Civ. Pro. 1-094 and Rule 83.11 of the Local Rules for the United States District Court for the District of New Mexico. Students are required to conduct themselves at all times within the spirit and meaning of the Rules of Professional Conduct. ADR supervisors must be sure that students understand and follow these rules.
Under these rules, students are granted the privilege to practice law while under the supervision of a properly licensed attorney designated by the Dean of the Law School and while the student is currently enrolled in the Law School clinical program. A lawyer other than the lawyer designated by the Law School as the student's supervisor is permitted to supervise the student only with the prior permission of the Law School.
N.M.R. Civ. Pro. 1-094 provides:
1-094. Clinical Education.
A. Purpose. To permit a clinical program for the University of New Mexico School of Law.
B. Procedure. Any law student admitted to the clinical program at the University of New Mexico School of Law shall be authorized under the control and direction of the Dean of the Law School to advise persons and to negotiate and to appear before the courts and administrative agencies of this State, in civil and criminal matters, under the active supervision of a member of the State Bar of New Mexico designated by the Dean of the Law School. Such supervision shall include assignment of all matters, review and examination of all documents, and signing of all pleadings prepared by the student. The supervising lawyer need not be present while a student is advising a client or negotiating, but shall be present during court appearances. Each student in the program may appear in a given court with the written approval of the judge presiding over the case and shall file in the court a copy of the order granting approval. The Law School shall report annually to the Supreme Court.
C. Eligible Students. Any full-time student in good academic standing in the University of New Mexico School of Law who has received a passing grade in Law School courses, and have completed their first full year of twenty nine (29) or more semester hours (or their equivalent), but who has not graduated, shall be eligible to participate in a clinical program if he/she meets the academic and moral standards established by the Dean of the School of Law.
D. Effective Date. This Rule shall be effective after May 15, 1970. [As amended, effective May 1, 1986, January 1, 1995; November 24, 1997].
D.N.M.LR-Cv 83.11 provides:
83.11 Clinical Law Student Practice. Any law student admitted to the clinical program at the University of New Mexico School of Law shall be authorized under the control and direction of the Dean of the Law School to advise persons and to negotiate and to appear before this Court in civil and criminal matters under the active supervision of a member of the bar of the United States District Court for the District of New Mexico, designated by the dean of the University of New Mexico School of Law. Such supervision shall include assignment of all matters, review and examination of all documents and signing of all pleadings prepared by the student. Before a student appears in court, an order authorizing the student's appearance shall be of record.
Effective Date. July 27, 1992.
Students and ADR supervisors participating in the program are responsible for insuring that the supervisory requirements of these Rules are followed.
The Law School requires law students enrolled in clinical courses to fully disclose to all persons with whom they deal that they are clinical law students and not licensed attorneys. A law student without the prior consent of the ADR supervisor should represent no client or organization.
Placements are made with practicing lawyers, judges and agencies in the State of New Mexico. The ADR supervisor may be in private practice, in the judicial domain or working with a public agency, such as, the Court Clinic, Victim Offender Mediation, Family Court or the Western Network.
All placements are made by the Associate Dean for Clinical Affairs in consultation with the Dean of the Law School and the ADR supervisor with whom a placement is sought. Students and ADR supervisors are permitted to request placements, but no placement is final until approved by the Law School. Placements are made to promote the student's overall educational program and goals. No student may be placed under the supervision of a relative.
A student is not permitted to repeat an ADR externship without the written consent of the Associate Dean for Clinical Affairs. A student may petition the Associate Dean for permission to repeat an ADR externship based on a showing of substantial educational value.
Students are not permitted to be paid for the hours they work in the ADR Extern Program. Students receive three credit hours for successfully completing an ADR externship. The credit hours earned in the externship count toward the hours required to graduate from Law School, but they do not count toward the Law School clinical course requirement of six credit hours earned in an "in house" clinical course.
If funding is available, students may be compensated for extraordinary travel or living expenses while traveling for their extern placement. If a student works extra hours over and above those required for extern credit, and the law student has arranged in advance to be paid for these hours, pay is permitted. Pay in this circumstance must be the prior written approval of the Director of the Clinical Law Program. The student must keep carefully written records of all time worked for pay and for Law School credit to substantiate the fact that pay is not being accepted for time allotted to the clinical extern requirement.
Mediation Training or Alternative Dispute Resolution classes are required in order to complete an ADR externship. Please check with the Associate Dean for Clinical Affairs regarding waiver of any prerequisites prior to course registration.
Clinical Enrollment and Law School Registration
Students must enroll for the ADR Extern Program during the sign up period designated by the Director of the Clinical Law Program. Placements with a specific ADR lawyer, judge or facilitator should be finalized during the first week of the semester. The Law Clinic regularly receives inquiries regarding possible placements with law firms, government agencies, and the courts. Students desiring assistance in securing a placement or discussing a particular placement should speak to the Externship Coordinator or the Associate Dean for Clinical Affairs.
The enrollment for the ADR Extern Program does not constitute registration for the course with the University of New Mexico Registrar's Office. Registration and tuition payments are handled on central campus in the same manner as for all Law School courses. Questions regarding registration and tuition should be directed to the Law School Registrar.
Office Hours and Class
During the Fall or Spring semesters, students are required to work twelve (12) hours each week, for fourteen (14) weeks in their extern placement, for a total of 168 hours to earn 3 credits. Students are required to work eight (8) hours each week, for fourteen (14) weeks in their extern placement, for a total of 112 hours to earn 2 credits.
In the Summer semester, students work sixteen (16) hours each week, for ten (10) weeks in their extern placement, for a total of 160 hours to earn 3 credits. Students are required to work a total of 104 hours in their extern placement to earn 2 credits.
A set schedule of office hours must be arranged with a student's assigned ADR supervisor during the first week of the semester. The hours are to be set during the ADR supervisor’s usual office working hours. A copy of the schedule is delivered to the lawyer and to the Director of the Clinical Law Program.
The actual hours worked by the student generally conform to the scheduled office hours. With the permission of the ADR supervisor, some flexibility is allowed to accommodate special circumstances, such as, illness or opportunity to engage in a particularly exciting educational experience outside of the regularly scheduled hours. A student is not allowed to accumulate hours for the purpose of working fewer weeks. Exposure to the ADR extern experience over the course of a full semester is an essential component of the overall educational program.
During the fall and spring semester, the beginning and end of the office hour’s period will run a total length of fourteen weeks. Students are required to maintain the assigned office hours beginning in the second week of the semester. Office hours are to be kept until the last day of classes at the Law School.
During the summer semester, the beginning and end of the office hour’s period will run a total length of ten weeks. Students are required to maintain the assigned office hours beginning the first week of the semester. Office hours are to be kept until the last day of classes at the Law School.
If a student fails to keep office hours as required, the Associate Dean for Clinical Affairs must be informed immediately by the ADR supervisor and the student. Any change in office hours or in completion of the externship program should be coordinated with the ADR supervisor and the Externship Coordinator.
The Associate Dean for Clinical Affairs will arrange class sessions to be held during the semester. Please check the Clinic web calendar for days, times and room assignment. Attendance of the classes is mandatory, and the hours spent in these classes count as part of the weekly office hour’s requirement.
Withdrawing From the Externship Program
Students are not permitted to withdraw from the ADR Extern Program after the third week of the semester without the permission of the Director of the Clinical Law Program. This requirement is to prevent possible harm to the ADR cases or to the working environment of the office or judicial chambers. Students desiring to withdraw from this course should first speak to their ADR supervisor.
Activity Reports and Confidentiality
Every two weeks, students must submit activity reports to the Externship Coordinator. These reports account for the manner in which a student is spending his or her time in the extern placement. The reports must be sufficiently detailed to present a clear description of what activities the student has been pursuing and what the student is learning. The reports must contain the date of the student activity, a description of the activity, and the total amount of time expended on each day's activities. It is essential to the ADR Extern Program that the ADR supervisor feels free to communicate with the law student extern. Confidentiality of these communications must be assured. Students are strictly cautioned against breaching confidences and can be disciplined by the Law School for a breach of a confidential relationship. Discipline may include dropping the student from the extern course with a failing grade. In order to insure that confidences are not breached, the student extern and the student’s supervisor must sign all activity reports submitted to the Associate Dean for Clinical Affairs. Activity reports may be submitted on the Clinic's activity report form, copies of which are available in the Clinic at the Law School.
Final Paper and Placement Evaluations
The ADR extern experience is enhanced by the student's self-reflection on his or her learning. To encourage self-reflection and to provide focus to the educational experience, students in the ADR Extern Program are required to submit a paper to the Externship Coordinator, copied to their ADR supervisor, which describes in detail one or more aspects of their learning experience. The paper should focus, in depth, on insights into the ADR process or the student's own skill or knowledge development in the context of his or her learning experience.
The paper is due no later than the last day of required office hours. There is no specific length limitation, but it is expected that most papers will range from seven to ten pages.
Course Credit and Grading
Law students receive three Law School credit hours for their work in the ADR Extern Program. The course is graded credit/non-credit, C-, D+, D, D-, or F. Whether credit is to be given is determined by the Associate Dean for Clinical Affairs, based on the activity reports, the final paper, and a final evaluation from the supervising lawyer. A failure of the student to submit timely activity reports or the final paper will result in the reduction of the grade or a denial of credit.
Final Evaluation by the ADR Supervisor
At the end of the semester, the ADR supervisor must submit a final evaluation of the student's work to the Associate Dean for Clinical Affairs. The final evaluation is done on a form supplied by the Clinic. The Extern Program Coordinator shortly before the completion of the semester will provide a copy of this form to the ADR supervisor.
This description of the ADR Extern Program is designed to anticipate common questions students and supervisors may have about the extern program. If questions or problems arise during the semester, do not hesitate to call the Associate Dean for Clinical Affairs.
If a student falls significantly behind in meeting the requirements of the course, it is important that the student and Associate Dean for Clinical Affairs be informed immediately. This helps to prevent misunderstandings, which may arise after the semester is concluded.
The School of Law believes that placing the students in an ADR environment is a significant and valuable part of the educational program. We welcome suggestions for improvement from anyone interested in the program.
Arbitration is the fastest growing discipline within the broader area of conflict resolution and is a growing portion of the dockets of the U.S. Supreme Court and the U.S. Courts of Appeal. If you intend to practice in the area of litigation, you will encounter arbitration and, therefore, need to be familiar with this area.
For the largest portion of the 20th century, arbitration was admittedly a pretty dull area and confined mainly to labor law, the law merchant and large commercial transactions. Then, three decades ago, the U.S. Supreme Court got religion and, as a result, arbitration has exploded into almost every area of the law, even those covered by small firms and sole practitioners. Whether doing a “click-through” when accepting terms for an internet purchase, signing a consent-to-treatment form in the emergency room at the hospital, picking up an employee handbook at a new job, or signing on the bottom line for the purchase of a shiny new car, individuals may be signing binding arbitration agreements without knowing one iota about the arbitration. Besides, no one reads the fine print, do they? Have you?
Arbitration has grown far beyond its original roots dating back to the middle ages where parties or relatively equal bargaining power, sought a neutral forum where a specialist from their own field could render a decision swiftly and economically, and without worrying about the vagaries of the courts in the local principalities or the ecclesiastical courts. Now, arbitration is often imposed on the weaker party in consumer, health care, and employment etc. with the rules of the arbitration written to favor the powerful party.
Opinions are coming quickly from both state and federal courts (especially the U.S. Supreme Court) that interpret, reinterpret, and dramatically change arbitration law across the land. Using these cases, updated to the moment, along with the state and federal statutes, the course will help the students construct an understanding of the major issues their clients may face in this rapidly expanding field.
The course will cover the dynamics of the Federal Arbitration Act (FAA) and how it has become the principle tool for the growth of arbitration. Is the FAA a source of federal question jurisdiction? How do parties use it to enforce or avoid arbitration? How has the federal principle of preemption developed around the FAA? How has the FAA impacted parties’ rights of access to civil trial under the federal civil rights acts in face of written arbitration agreement – mostly negatively? What rights of appeal exist under the FAA?
The course will also review the defenses, both at law and equity that parties have to avoid the enforcement of an arbitration clause? How does the FAA interact with state arbitration statutes, other state and federal laws, state statutes and administrative regulations and procedures? The FAA creates a separate body of federal common law. How does it exist and interact with state common law?
The principle aim of arbitration is to give you a giant head start in the field. If you do the work, you should know a great deal more about arbitration than a just a few expert attorneys practicing in New Mexico at this time.
Basic Mediation Training
This training seminar provides people with the opportunity to learn how to negotiate effectively and understand the theory and practice of mediation as a method of alternative dispute resolution. We will use simulations, small group exercises, and concept presentations based on realistic problems to provide an intensive, practice-oriented experience. Topics covered include:
- tools for analyzing the dispute and selecting the best interventions
- dealing with resistance and gaining commitment to constructive negotiation
- mediating multi-party disputes
- ethical dilemmas
- strategies for balancing power
- techniques for breaking impasses
- assessing mediator competency
- mediation as assisted decision-making
Journal or reflective papers will be required. This course will be graded on a CR/C-, D+, D, D-, F basis. The course will be scheduled on two weekends beginning at midday Friday, running all day Saturday, and through the afternoon on Sunday. See schedule for exact times. Attendance during all scheduled class time is mandatory. There will be no exceptions to the attendance requirement.
If you have a conflict with another course that meets on Friday afternoon, you will have to make arrangements with the professor to miss those classes that conflict with the two Fridays that Basic Mediation is scheduled. If those arrangements cannot be made, you will not be able to take Basic Mediation. These arrangements must be made at the very start of the semester, so that another course can be scheduled if you are unable to get the excused absences that are necessary to attend Basic Mediation.
Basic Mediation is a prerequisite for Family Mediation and must be taken in a prior semester. Basic Mediation cannot be taken in the same semester as Family Mediation.
Comparative and Historical Legal Perspectives
This course is a wide-ranging historical introduction to our Common Law legal tradition. The course also provides a comparative legal perspective on the Common Law versus Civil Law systems. In addition, the course includes topics focusing on: the role of law and lawyers, legal education, non-Western concepts of law, so-called Alternative Dispute Resolution (ADR), and changing perceptions of law in America. Thus, the course offers comparative, historical, cultural, and jurisprudential dimensions to law. It establishes a broad context not only for other first-year courses, but for the student’s entire legal education and work as a lawyer.
Interviewing, Counseling, Negotiation
This course is designed to develop students' skills in the fundamentals of interviewing, counseling, and negotiating agreements. These three skills have been identified by the ABA Task Force on Law Schools and the Profession: Narrowing the Gap as essential components of competent lawyering. The course will cover conceptual foundations for understanding the processes involved in interviewing, counseling, and negotiation, with a primary focus on negotiation
Introduction to Alternative Dispute Resolution
This course is designed to provide students with a working knowledge of Dispute Resolution (DR) theory and practice. The course will focus on the basic components of the dispute resolution spectrum: negotiation, mediation, arbitration and hybrid processes. Within these components, the course will examine the legal, ethical, and policy issues that arise from the various DR applications. A theme throughout the semester will be the appropriate selection of DR forums and representation of clients in DR.
Theory of Conflict
This interdisciplinary course introduces students to important theoretical perspectives on our understanding of conflict and conflict responses. Specifically, students explore the biological/physiological, psychodynamic, social psychological, communication, and socio-political perspectives on conflict by reading and discussing major theoretical works within each discipline. Emphasis is on comparing and distinguishing key dimensions of these theories, such as the nature and sources of conflict, conflict escalation, conflict response, and the nature of the third party role. Classes will be interactive. Using case studies, exercises, and group discussion to draw upon personal experiences, the course explores the usefulness of each perspective to understand the experience of conflict.
Torts is an introduction to the system governing civil liability for wrongs. Unlike contract law, in which persons establish standards governing their relations in private agreements, tort law imposes rights and duties between persons even when the parties have not done so by contract. Unlike criminal law which the government (rather than the victim) imposes societal standards through the medium litigation seeking punishment for violation of criminal law, tort litigation is controlled by the injured person who seeks not punishment, but personal compensation via money damages from the person whose violation of the laws of torts cause harm to the victim. Course coverage focuses on the tort of Negligence. As time permits, other torts are analyzed.
The Uniform Mediation Act: To the Spoiled Go the Privileges, 85 Marquette L. Rev. 9 (2001).
A Closer Look: The Case for a Mediation Confidentiality Privilege Has Not Been Made, Disp. Resol. Mag., Winter 1999, at 14.
The Process of Drafting a Mediation Act, Part I, Soc'y of Profs. in Disp. Resol. Rep. (Jan. 1999).
Facilitative Mediation or Evaluative Mediation: May Your Choice Be a Wise One, 59 Ala. Law. 246 (1998).
Elizabeth's Story: Exploring Power Imbalances in Divorce Mediation, 8 Geo. J. Legal Ethics 553 (1995).
Editor-in-Chief, U.S. Dep't Just. Land & Nat. Resources Division J. (1976-77).
Works in Progress
The Institutionalized Protection of Mediators in the United States: A Brief Look Through the Lens of the Uniform Mediation Act (for law review in Granada, Spain).