Shaping Lawyers’ Professional Identity Through the Teaching of ADR Kathy Douglas

ADR in the legal curriculum

• Increasing adoption of ADR in legal

curriculum.

• NADRAC (2012) called for law students to be

educated in understanding ADR.

• Such education has benefits for students, the

profession and the public (Sourdin 2012; Duffy

and Field 2014)

ADR in Legal Education

• ADR courses may be compulsory or

elective and may be combined as part of

core subject for legal practice such as civil

procedure

• They may be part of an integrated skills

program along with other legal skills such

as advocacy.

Research into ADR education

in Legal Education shows: • Fisher et al (2007) research indicates

learning related to ADR can affect the conflict orientation of law students shifting them to a view of practice that is less adversarial.

• Howieson (2011) has proven the benefits of the discipline area of ADR contributing to the mental health of students in law schools

Law Standards

• ADR has received important recognition in legal education through the finalisation in December 2010 of law standards (Kift et al 2010)

• Relevant to TLO 1: knowledge, TLO 3: thinking skills, TLO 5: communication and collaboration and TLO 6: self-management.

• Increasingly also ethics

Alot to Offer

• ADR can provide learning in communication and collaboration as negotiation and mediation requires communication and collaborative skills, often attained through experiential role-play

Its becoming accepted that ADR should be included in the legal curriculum but what are the best ways to include it ie year level? stand alone course? combined or integrated? Who should teach this area?

Methodology

• Study undertaken for PhD.

• A mixed method approach was adopted for the study. The stories of ADR law teachers in Victorian and Queensland law schools were gathered to shed light on the content and pedagogy of this area of teaching. Twenty-nine participants were interviewed or surveyed in late 2007 and 2008 (with some surveys coming in 2009).

• A content analysis of 13 ‘main’ ADR course guides was also undertaken.

Best Way Forward

– The findings discussed in this presentation focus on the best ways forward for the teaching of ADR.

– The data complements the NADRAC (2012) survey data

– Provides ‘thick’ descriptions of the lived experiences of ADR teachers.

Analysis of Data

• Broad support for the teaching of ADR in the legal curriculum. This support came from teachers who taught ADR as a stand alone course, where it was integrated and where it was combined with another area such as civil procedure.

• Based on the view that it ADR is present in practice and studying the area has vocational advantages for students.

Example Responses

• The thing that I think worked well, and I had a lot of students say to me afterwards, things like this was the first subject I did in law school that actually has some real use not just as a lawyer but in every day life (Q 1 (b) p 6).

Example 2

• I think the teaching of law students in ADR is

critical on two fronts…it seems to me that

lawyers have needed this sort of training as

long as there have been law schools, so

these are essential skills. The second thing in

terms of teaching ADR [is] as part of the legal

system’s systemic response to conflict

management (V 3 (a) p 1).

Where placed in Curriculum?

Of the universities that included ADR as a stand-

alone academic course, one law school positioned the

course as a first year compulsory course and two had

ADR as a later year compulsory course.

Two out of three law schools that combined ADR

with civil procedure included this course as a

compulsory later year course.

Stand alone? Integrated?

• In the interviews, the majority of teachers

were of the view that ADR should be included

as a first year course, to combat the

adversarial constructs of much of the rest of

legal education. There was strong support for

a first year positioning of ADR, but no clear

agreement on the way that this positioning

might be achieved.

Integrated

• Where integrated there were some concerns expressed by participants

• I think it [ADR] gets lost. Every time there’s a curriculum review it gets mapped. So 2003 was the last curriculum review with a whole lot of transition stuff in the first year and skills and ‘what not’ were developed and done…but since then things have dropped off and units have added things or discarded things so we've just done another curriculum review and it’s getting mapped again (Q 2 (a) p 4).

Who Can Best Teach ADR?

• …one of the things about integrating it or

having it [as a] more substantial part of the

law curriculum is [teachers’] worry that they

don’t have any skill base to draw on

themselves (V 2 (a) p 24).

But Where are the Teachers?

• …I also know integration is doomed to fail

because it requires so much [in terms of]

resources. You’d have to sack half your staff

and you’d have to hire practitioners who have

become academics. So you’d have to change

the nature of your hiring policy, which the

universities won’t do. So integration is a noble

ideal which will only succeed in a few places

(Q 4 (b) p 10).

The Impact of a Lack of

Doctrine in ADR • But I also feel that there’s a lot of kind of you

know, suspicion about the area that I work in. That there’s still a bit of an idea in the context of XXX law school that perhaps dispute resolution is a bit sort of light on, you know it’s a bit unserious, a little bit Mickey Mouse…And I think that that’s because it departs from traditional notions of what law’s about(N 1 (a) pp 13-14).

Make it Look Black Letter

• I referred in the proposed outline to

case law about confidentiality and court

rules in relation to referral to mediation

and I made it look really lawyerly (Q 1

(b) p 2).

Expensive Pedagogy

• ADR pedagogy can be expensive

• Well if you run any classes, skills class, it’s very labour intensive both in organising role-plays and then supervising them. So it’s very exhausting and hard work, and expensive to get the right number of people there. So given that, what most people do is they don’t do it. They go back to theory, because skills teaching [is] too exhausting (Q 4 (b) p 14).

In summary

• ADR teachers expressed support for including ADR due to changes in legal practice and the vocational benefits of the area.

• Best ways forward include a compulsory first year course.

• Best not integrated

• Best taught by ADR specialists

• Not always respected by other law academics

• Expensive pedagogy

The future

• Likely increase of ADR in legal curriculum

• The quality of inclusion may vary

• Need champions of ADR in law schools

• Need to encourage understanding of different nature of area in contrast to black letter law

• Need to argue for quality pedagogy.

• However ADR in Legal Education has come a long way!!