Not Teaching ADR in Law Schools? Implications for Law Students, Clients and the ADR Field

Abstract

Alternative Dispute Resolution (ADR) is not taught in all Australian law schools. If it is taught, it is more likely to be taught as an elective rather than a mandatory core subject. The National Alternative Dispute Resolution Advisory Council (NADRAC) in 2011 and 2012 conducted a survey of Australian Law Schools and estimated that at present less than half of all graduates from Australian Law Schools receive training and education in ADR. Yet, lawyers in Australia are required under ethical and legislative regimes to advise clients about ADR. Clients expect lawyers to know how to negotiate and to be skilled in various forms of dispute resolution, not just litigation. Lawyers are frequently engaged in ADR as representatives and they are now more likely to be involved in ADR than litigation. Given this reality, why is it that many Australian law schools still do not teach ADR as part of a mandatory core curriculum?

There are many reasons for this failure and some are systemic. For example, there have long been tensions between those in legal academia and the practising profession about how the law curriculum can be most effectively developed. Despite many changes over the past two decades, the lack of strong, relevant and complimentary relationships between the practising and academic branches of the legal profession has continued to restrain the practice of law and the development of legal theory particularly in the ADR field. In addition, there are funding and staff resourcing issues that hinder the development of ADR teaching within Universities. Other factors could be defined as ‘cultural.’ ADR can be seen as a ‘soft’ option or not a real law subject or harried academics may simply not want to cede space within a crowded curriculum to another ‘newcomer.’

The implications of not teaching ADR are significant. Producing law graduates who cannot meet the expectations of their clients and who are unable to contribute to the wider dispute resolution system is at best irresponsible and at worst is preparing law graduates to fail. The modern lawyer faces many challenges and significant competition from non law areas as well as a decline in ‘bread and butter’ legal work through the off shoring of legal services and trends to limit or replicate (using enhanced technologies) more traditional areas of work. Students who are limited to a restricted world view through an adversarial paradigm will be disadvantaged by their limited education as the justice system continues to change and rapidly evolve. Having untrained and poorly educated lawyers may have a negative impact on ADR uptake and use and lead to the establishment of ‘litigotiation’ approaches that mimic adversarial methods. In addition, ad hoc or no University law ADR teaching arrangements can have a broader impact on the ADR field by limiting the development of academic interest and contributions in this area.

Keywords: pedagogy, ADR, law school, trends, development of ADR, future, university