Professor Scott Hughes
Emeritus 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.
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.
This course will examine federal statutory law as it applies to discrimination in the workplace. We will focus on Title VII of the Civil Rights Act of 1964 and its amendments; the Age Discrimination in Employment Act; and civil rights statutes from the post-Civil War Reconstruction era, including 42 U.S.C. § 1981. The course will explore the substantive meanings of “discrimination” under these acts, the models of proof for establishing a claim, the theoretical underpinnings of the statutes, and some of the procedural and remedial issues relevant to employment discrimination law.
This course will analyze state and federal statutes and common law relied upon in the typical practice of employment law, including the at-will employment doctrine and its exceptions, Title VII of the Civil Rights Act of 1964, the American with Disabilities Act, the Family and Medical Leave Act, the Equal Pay Act, Wage and Hour law, Unemployment Compensation, Workers Compensation, the New Mexico Human Rights Act, etc. In addition the inquiry into the relevant law, the class will incorporate exercises in the practical aspects of litigation in this field, from both the employee and employer perspective.
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.
This course in Labor Law studies the federal regulation of employer-employee relations in an industrial society. The course will focus primarily on collective bargaining, which describes how employees may organize into unions; the processes by which unions and employees deal with each other in establishing agreements concerning wages, hours, and other conditions of employment; and the limits of permissible conduct of employers or concerted action of employees. The course materials will survey the enforcement of the National Labor Relations Act and related statutes by the courts and the National Labor Relations Board.
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.
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.
Books & Book Chapters
The Art of Mediation (2010) (co-authored with Michele G. Hermann & Mark Bennett).
Available at: UNM-DR
Mediator Immunity: The Misguided and Inequitable Shifting of Risk, 83 OREGON L. REV. 107 (2004).
Available at: UNM-DR
Understanding Conflict in a Postmodern World, 87 MARQUETTE L. REV. 681 (2003).
Available at: UNM-DR
The Uniform Mediation Act: To the Spoiled Go the Privileges, 85 MARQUETTE L. Rev. 9 (2001).
Available at: UNM-DR
Facilitative Mediation or Evaluative Mediation: May Your Choice Be a Wise One, 59 ALA. LAW. 246 (1998).
Available at: UNM-DR
Elizabeth's Story: Exploring Power Imbalances in Divorce Mediation, 8 GEO. J. LEGAL ETHICS 553 (1995).
Available at: UNM-DR
Bar & Trade Publications
A Closer Look: The Case for a Mediation Confidentiality Privilege Has Not Been Made, DISP. RESOL. MAG. 14 (Winter 1999).
Available at: UNM-DR
The Process of Drafting a Mediation Act, Part I, SOC'Y OF PROFS. IN DISP. RESOL. REP. (January 1999).