Transcript Why ADR must be a mandatory subject in the law

WHY ADR MUST BE A
MANDATORY SUBJECT IN THE
LAW DEGREE
1
James Duffy – Lecturer, Queensland
University of Technology
Rachael Field – Associate Professor,
Queensland University of Technology
THE GUTS OF IT

ADR should be a mandatory stand alone subject
in the law degree



If we accept the centrality of ADR to current legal
practice, then ADR should be taught to law students to
prepare them for that practice.
ADR is most frequently offered as a stand-alone
elective, late in the law degree
If an ADR subject is not mandatory, it is possible that
some students won’t study it, and this is a bad result!
2
OUR GOAL



Every law school in Australia teaches ADR as a mandatory
stand alone subject
Some are still resistant to the idea of ADR being taught in
the law degree – ie soft option, not law etc.
We are hoping to create an easy to understand pitch to law
faculties, to encourage them to rethink their curriculum
3
10 Reasons why ADR must be a
mandatory subject in the law
degree
4
REASON 1

Current teaching does not reflect legal practice



Litigation is privileged as the predominant way to
resolve disputes
Irony: The amount of time we spend analysing judicial
decisions is almost inversely proportional to the number
of disputes that are actually litigated (Eric Green, 1984)
5 percent of commenced civil actions actually make it to
trial.
5
REASON 2

Participation in ADR processes are mandatory
under certain legislation



Judge can direct parties to ADR process with their
consent
Judge can compel parties to engage in ADR without
their consent (eg Civil Proceedings Act 2011 (Qld) s 44)
Parties may be required to engage in an ADR process
before filing a claim with the courts (eg Civil Dispute
Resolution Act 2011 (Cth) sections 3 and 4 – Genuine
steps)
6
REASON 3

Legal practitioners have a duty to advise clients
about ADR processes

Solicitors: Australian Solicitors Conduct Rules rule 7.2.
“A solicitor must inform the client or the instructing solicitor about
the alternatives to fully contested adjudication of the case which are
reasonably available to the client, unless the solicitor believes on
reasonable grounds that the client already has such an understanding
of those alternatives as to permit the client to make decisions about
the client’s best interests in relation to the litigation.”


Barristers: See the Barristers’ Rules in each state
If you have not been exposed to ADR instruction, you can’t
meaningfully discharge this duty
7
REASON 4

ADR instruction allows students to appreciate the
importance of emotion (and emotional intelligence)
in the resolution of disputes



The lawyering role is people intensive and people have
emotions
Do the rational, logical, analytical, critical, pessimistic,
risk adverse traits that law school rewards fully equip
students to deal with client emotion?
Role plays and working with emotion
8
REASON 5

Lawyers need to understand about the nature and
theory of conflict



Helping clients with a conflict/dispute goes to the heart
of the lawyer’s role
Knowledge about conflict theory can help prevent
disputes from arising and can also help to
manage/resolve a conflict
Conflict is multi-faceted and subjectively perceived and
may not be resolved by focussing upon legal rights and
entitlements
9
REASON 6

Teaching ADR supports law student psychological
well-being




A move away from adversarialism
A move away from zero-sum games
Putting the people back into the story
Increased student engagement, interaction with peers
and sense of belonging at law school
10
REASON 7

It is impossible to satisfy the Threshold Learning
Outcomes for Law (TLOs) without exposing students
to ADR instruction






knowledge (TLO 1)
ethics and professional responsibility (TLO 2)
thinking skills (TLO 3)
research skills (TLO 4)
communication and collaboration (TLO 5)
self-management (TLO 6)
11
REASON 8

ADR instruction can help students to develop a
positive professional identity


Professional identity = how people see themselves in a
professional role
ADR’s focus on consensus building, negotiation and
mutually beneficial outcomes, can provide comfort to
students who do not identify with the adversarial
nature of litigation
“For many lawyers, the ability to practice without having to
adopt the aggressive persona of the litigator is a liberating
experience, as no doubt there is a vast number of lawyers
whose self image as a professional does not follow the
traditional adversarial model. Non-adversarial practices allow
lawyers to cast off the shackles of adversarial behavior,
providing them with an opportunity to reinvent themselves
(and their image) as more caring and helpful”
12
REASON 9

NADRAC supports the mandatory inclusion of ADR
in the law curriculum



So what?
NADRAC’s policy aims in the legal sphere are
important and worthwhile (eg creation of a dispute
resolution culture)
NADRAC needs the help of law faculties to help
promote and achieve these policy aims
13
REASON 10

Law students are demanding ADR knowledge and
skills

The law curriculum should not be driven by student
demand
but

We should not underestimate subjects that law
students value because they are viewed as being
relevant to future legal practice

At the QUT law school, the elective LWB150 –
Lawyering and Dispute Resolution had the highest
student enrolment of any elective in the law degree for
the three years that it ran.
14


Thankyou
Let us know how our pitch can be improved –
what have we missed?
15