Douglas, K --- "The teaching of ADR in Australian law schools: promoting non-adversarial practice in law" [2011] LegEdDig 21; (2011) 19(2) Legal Education Digest 15

• The teaching of ADR in Australian law schools: promoting non-adversarial practice in law

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The teaching of ADR in Australian law schools: promoting
non-adversarial practice in law

K Douglas

Australasian Dispute Resolution Journal, Vol 22, 2011, pp 49-57

Lawyers are said to gain a ‘standard philosophical map’ through their legal education. This map privileges the role of litigation in dispute resolution and arguably comes from the nature of legal pedagogy. The focus in law schools upon the teaching of appellate decisions and the use of the Socratic, or the similar case-based method, has been said to promote an adversarial approach in students’ orientation to conflict. The work of Fisher et al has shown that learning related to ADR can affect the conflict orientation of law students shifting them to a view of practice that is less adversarial. Importantly, Howieson and Ford have shown the benefits of the discipline area of ADR contributing to the mental well-being of students in law schools. The need to include ADR in the legal curriculum has long been recognised and many commentators have advocated for law schools to systematically include the range of non-curial options, particularly negotiation, in the education of law students. Many writers have linked an understanding of ADR to the wider endeavour of assisting law students to develop into holistic problem solvers, modifying the traditional adversarial construct of the legal identity. Arguably, learning about ADR is not simply an end unto itself, but is positioned in the wider discourse of the changing professional identity of lawyers.

A recent Australian report into learning and teaching in law schools values experiential learning and the contribution such learning can make to the development of graduate attributes in law.

In Australia, many universities include specific subjects, parts of subjects, or skills programs that deal with ADR and include a focus in such areas as negotiation and mediation. Practical legal training includes ADR due to the requirement that students master dispute resolution skills under national competency standards.

The place of ADR in legal education in Australia is arguably gaining more importance due to the continued increase in the use of dispute resolution options in courts and government initiatives.

In the Australian context research is needed to explore the best ways to teach negotiation and mediation and other ADR options. It is important to understand the ways that ADR is being taught and the theories and models that are used. In order to be reflexive regarding the place and teaching of ADR in legal education, the author has undertaken research into the present content and pedagogy of ADR teaching in selected Australian law schools.

The data was gathered by interviewing teachers in Victorian and Queensland law schools who taught in the discipline area of ADR. The focus of the research was upon academic courses dealing with ADR rather than integrated or stand-alone skills regimes. Twenty-four participants were interviewed in late 2007 and throughout 2008. Each participant had taught an ADR course (or similar subject matter) in a university in one of the two States and some participants had taught in a number of different States. Some quantitative data, relating to such issues as the age and experience of participants was gathered for the study. One additional academic from New South Wales was interviewed as part of the study due to that participant being named by other interviewees as important to contact and interview. Included in the ADR courses that formed part of this research were those that dealt with ADR alone, those which combined civil procedure with ADR or a similar term in the title, those which dealt with non-adversarial justice as the focus of the subject, or those where this area was combined with ADR. Each participant was chosen through a perusal of law program websites or was suggested by other participants and an email enquiry was sent inviting them to be part of the research.

Interviews lasted approximately 30 to 60 minutes and were conducted face to face or by telephone. Interviews were taped, transcribed and manually coded.

One of the aims of the research was to gain insights into the practices of ADR teachers in law schools, exploring the community of practice in the selected States. It is a limitation of this research that it was not conducted throughout Australia. Additionally, the research did not attempt to establish the ‘best’ way to teach ADR in law programs and did not consider whether a stand-alone or an integrated approach to teaching this discipline area was more effective. Rather, the aim was to gather the stories of ADR teachers, their lived experiences, and to describe and discuss a number of themes that arose from the data. Selected themes relevant to the non-adversarial practice of law are discussed in the next section of this article.

All the participants in the study recognised the value of ADR in litigation processes.

In the data, participants were asked their views about the legal profession’s approach to dispute resolution. Largely the participants were of the view that although the legal profession had made some strides towards the acceptance of ADR, there was still room for improvement. For example, one participant, who combined civil procedure with ADR, commented upon the lawyer’s frame of practice. He noted that generally lawyers had an adversarial frame of practice, and contrasted this frame with the needs and perspectives of parties:

[F]rom a lawyer’s point of view, a dispute is resolved if it’s litigated where the judge makes their decision. Now ... if you know anything you know that [litigation] doesn’t necessarily resolve it either ... So what’s the element of success? And is it an external thing or ... do you ask the parties? Do you ask both parties, one party?

Another participant commenting on the lawyer’s adversarial frame of practice argued that ADR still operated on the periphery of legal practice:

I think that the ADR, the way it’s formed about the profession, is ‘yes, it’s a good idea, and sometimes we have to do this, and we’ll shunt it off to the professionals to do it’. So I think there’s an acceptance that ADR is an acceptable part of the legal landscape, but it’s not something that a lot of lawyers themselves feel it’s part of what they do.

Similarly, another participant noted that a range of approaches are important in dispute resolution and that litigation should not be sidelined when considering options:

I mean, one of my worries about ADR, just as I’m concerned about litigation, is that there’ll be people who think that ... [you’re like] trick ponies; they seem to think you use the one mechanism in every situation. That’s seriously flawed – there is no one mechanism that is going to be well suited to all situations, it just doesn’t work like that.

A number of the teachers interviewed for this study did reflect upon the fact that they were not systematic in their teaching regarding the appropriate role for lawyers in ADR. While supportive of the use of ADR processes in litigation, they were less clear regarding the appropriate role of lawyers engaged in ADR and how that could best be taught to law students. For example, two participants in this research saw the lawyers’ role as important, but largely ill defined:

[I]n my view, there’s not much good literature on it. I’ve tried various things, and I don’t really like what I’ve found ... So we end up not having specific literature, but we end up talking about it. And we talk about it from a practical point of view and from a theoretical point of view, should they [lawyers] even be there. What about models where they’re not allowed? Okay, what’s the difference? What are the advantages and disadvantages? Why is it good to have a lawyer there? So we do talk about that, because it’s a great chance to reflect on the role of a lawyer, quite apart from the ADR context.

Other teachers were clearer in regards to what they taught about the role of the lawyer in ADR, but only two teachers included the role of the lawyer in the role-play simulations. Generally the role of the lawyer was discussed in lecture/seminar material:

[W]e teach short courses as a profession on representing clients in mediation and negotiation so ... it’s a top up theme.

I think the lawyer’s role, that that comes out in a negotiation reading, which we have, which is, and from a book called Beyond Winning: The Challenge of Dispute Resolution.

In two of the courses that combined civil procedure and ADR, the teachers did not specifically address the role of the lawyer in ADR in the curriculum, although this role may be considered in class discussion. One course that combined civil procedure and ADR did purposefully consider the lawyer’s role, but did not address it at any great depth. Generally, in this study, those teachers who combined civil procedure and ADR did not include the range of learning and teaching practices that teachers in stand-alone ADR courses did include, although the exception was one Victorian course that included role-plays in the teaching of the curriculum. In the next section of this article, more detail is given relating to ADR learning and teaching strategies.

The teachers in this study who taught ADR as a stand-alone course in their law program showed a thoughtful approach to curriculum design. Experiential learning was the norm in these subjects. The most common learning and teaching strategy utilised by the ADR teachers as part of this study was role-plays. The model used when playing out the role-plays was largely the integrative/facilitative model. In addition to this model, some teachers used other approaches. For instance, one teacher had made a DVD which showed the distributive approach to negotiation as the focus of a role-play and also for the same facts the integrative approach to highlight the need to make choices in practice regarding which model to utilise. Another course included a restorative justice conferencing role-play as well as the facilitative model to alert students to the differing dynamics of this approach and the wider group of participants that are often included in conferences. The inclusion of the lawyer as a separate role in the role-plays was not common, although it did occur in some instances. Law teachers’ reference to lawyers and non-adversarial practices in lecture material and tutorial discussion was widespread and this objective appeared in many course guides.

Other learning and teaching approaches included lectures and tutorials, small group work in relation to questions, reading packs that were used in tutorial discussions, training DVDs, use of popular culture movies to generate discussion in relation to conflict, use of improvisation in the role-plays and use of online learning. One innovative option was the use of clinic opportunities to allow students to observe ADR processes. Another course in the study included the option of students completing a placement at a justice agency which could include an ADR agency or a court that used mediation. The teachers of ADR in stand-alone courses that were part of this study all expressed a keen interest in learning and teaching and most valued small classes in order to achieve high levels of learning. Some teachers in stand alone ADR courses that were undergraduate expressed frustration with cost cutting in much of present day legal education that has put under threat experiential learning through role-plays. This is due to the high costs of small tutorials that are frequently used when role-plays are debriefed and where outside coaches are brought in to teach and assess students. A participant told the story of her previous teaching arrangements that had to be changed due to cost concerns:

Then there was a weekend role-play assessment and so students came in, Saturday, Sunday and there were a range of coaches and assessors and that’s a very expensive exercise when you start talking about 200 students. So it ran in first year but then Head of School said this is too expensive and so we had to modify [it], so what we did was reduce the number of seminars. Well we reduced it in the sense of, just trying to think of how we dealt with it, we changed from having a weekend seminar, role play assessment to doing the role play assessment in the seminar sort of program. And so the teachers did it without having to bring in additional coaches all for that one day.

Similarly, a participant noted that she was asked to reduce the experiential learning and thus limit the cost of an elective course in ADR. A new elective course was developed to achieve this aim:

[The head of school] asked to devise a unit that would teach the ADR skills more cheaply because the existing unit was a very resource intensive unit.

Where courses were full fee paying, such as in a Juris Doctor program, or where the ADR course had the enrolment numbers capped, cost issues relating to teaching were not such a concern. As indicated in those courses that combined civil procedure and ADR, there was not a focus upon experiential learning (except in one case) and therefore cost issues were not commented upon in this context. Notably, although role-plays were not undertaken in these combined civil procedure and ADR courses, experiential ADR learning opportunities were available in other linked courses or in a skills program.

In summary, the findings of this research, described in part in this article, show that ADR teachers in stand-alone ADR courses and those combined with civil procedure offerings, value ADR and non-adversarial practice in law. Some teachers expressed doubt about the degree to which ADR is fully adopted in the legal profession. They spoke of the need to discuss a range of ADR options in their courses and the importance of the use of litigation in some disputes. The curriculum of the stand-alone ADR courses, and one combination civil procedure and ADR course, dealt with the role of the lawyer in ADR but often did not address this concern in experiential learning. These same teachers did show a sophistication in their teaching and learning strategies, drawing upon a range of approaches with a focus upon role-plays using the facilitative model. On occasion other models were discussed in class and some teachers used more than one model in the role-plays. For some teachers in this study cost was a major concern in providing experiential learning opportunities that promote non-adversarial practice through the use of role-plays. In particular, the results of this research showed that many teachers in this study evidenced a commitment to non-adversarial practices that resist and challenge traditional adversarial constructs in legal practice and in the teaching of law. The teachers in this study who taught ADR as a stand-alone course, and one teacher who combined ADR with civil procedure, were attempting to change students’ orientation to conflict so that students’ valued ADR, whilst still understanding the importance of the role of courts and the option of a court hearing. This research shows the role of ADR courses in providing a sustained engagement with, and promotion of, non-adversarial practices in law.

As noted, the data discussed in this article relates to only two States in Australia. In order to more fully engage with curriculum concerns in ADR and the potential this area has to contribute to non-adversarial practice in law, a national forum, similar to the United States efforts in the teaching of negotiation and mediation in universities, is required. This approach will better promote a community of practice amongst ADR teachers and encourage them to share ideas to strengthen learning and teaching initiatives. The approach of a community of practice allows for the free exchange of ideas amongst peers. In this way learning objectives relating to the teaching of non-adversarial practice will be better articulated and learning and teaching strategies, such as role-plays that include the role of the lawyer, could be encouraged. Such a group could also lobby for appropriate funding of experiential learning options. Role-plays are the ‘signature pedagogy’ of ADR and must be properly funded. The forum should include all civil procedure teachers (whether these teachers specifically combine with ADR or not) and those teaching first year courses that may integrate ADR into introductory law subjects. Other interested teachers, such as family law teachers who include family dispute resolution in their subjects, could also be invited. There is a need to engage all of the law teachers who include some level of ADR content in their courses. In this way, a mapping and integrating of ADR into the legal curriculum may be assisted and the promotion of non-adversarial practice in law is more likely to be achieved.