Legal practitioners must understand which factors make ADR appropriate and must educate their clients to assist them in choosing the most appropriate process. This is particularly important now that some ADR processes are integrated with pre-trial litigation procedures. This requires a critical understanding of the advantages, disadvantages and strategic considerations of different methods and what characteristics of disputes or disputants lend themselves better to one or another form of ADR, if any.
In light of the increasing focus on ADR, Lauren Whitehead, a solicitor in our Sydney office, considers below what type of education the modern legal practitioner needs. Although focussed on the Australian context, the analysis is equally relevant to other jurisdictions where ADR is being embraced.
Practitioners are said to gain a standard philosophical map through their legal education, with an emphasis on the role of litigation in dispute resolution. Arguably this comes from the nature of conventional legal education, the focus in law schools of teaching appellate decisions and the use of the Socratic method in classrooms. It is not a surprise that this route is said to promote an adversarial approach in students’ legal education, leading to the view that a collaborative or consensual approach is inconsistent with good lawyering and the strong representation of client interests. However, this adversarial approach may create conflicts with practical training and experience as a practitioner.
There is increasing commentary that ADR should be included as a continuum in the course of students and practitioners’ legal education and development. In fact, some scholars have suggested that traditional legal jobs will soon no longer exist and that the modern legal practitioner is likely to be more engaged in dispute resolution. Richard Susskind has stated that:
“The market is increasingly unlikely to tolerate expensive lawyers for tasks (guiding, advising, drafting, researching, problem solving and more) that can equally or better be discharged, directly or indirectly by smart systems and processes. It follows that the jobs of many traditional lawyers will be substantially eroded and often eliminated. At the same time, I foresee new law jobs emerging which may be highly rewarding, even if very different from those of today.”
Another legal scholar, Julie Macfarlane, has noted that if lawyers do not represent conflict resolution in our public culture, then what is their function? There is an urgent need for lawyers to modify and evolve their professional role consistent with changes in their professional environment. As areas of traditional practice evolve, law students who understand ADR will be able to function easily and effectively in today’s justice system and take on the work forecasted by Susskind. Those who fail to take seriously basic ADR education and practical training will find it difficult to function as a modern legal practitioner. Tania Sourdin argues that even those involved in transactional lawyering rather than dispute resolution or management will need to ‘get’ ADR because they must draft clauses that support it and negotiate using processes developed in ADR world.
One obstacle to this is the lack of a well-defined relationship between the practising and academic branches of the legal ADR professions. Current academic standards are not responding to the changes that have occurred in the justice system and this will have significant implications for the future development of the law curriculum. A recent study shows that both legal academics and practitioners believe that legal education could favour a more practical approach, including an emphasis on understanding and advising on ADR methods, rather than marching down the well-worn path of escalating threats to litigate and inflating claims about possible trial outcomes.
Indeed, the National Alternative Dispute Resolution Advisory Council (NADRAC) has also proposed that ADR and negotiation should be a part of all undergraduate university courses in a diverse range of areas, including business, health and social welfare. This proposal is out of concern that law students will be left behind while graduates from other disciplines will become increasingly skilled and better able to deal with conflict. At worst, these law students will find that their education and training has equipped them for a limited role in the area of disputes, with out-dated skills and diminishing relevance as lawyers within society.
Many law schools have made considerable changes to their curricula in light of the NADRAC proposal and ADR is now being taught in most Australian law schools, either as a separate subject or as part of civil procedure or litigation. One of the main benefits of the compulsory teaching of ADR is in the impact that it will have on the quality of future lawyers in responding to the changing justice system and the changing needs of clients. However, in most cases, ADR courses are an elective in a law degree, or feature as a small subsection of a course and thus it reaches only a minority of students.
Changes to the legal education environment are needed in order to support ADR teaching in comprehensive way, rather than at the margins. This will ensure that there is a greater chance that legal education in Australia will continue to be both relevant and supportive of dispute resolution in its traditional and alternative forms.