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W
ADR
James Duffy – Lecturer, Queensland
University of Technology
Rachael Field – Associate Professor,
Queensland University of Technology

T HE GUTS OF IT
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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 !
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O UR GOAL
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Every law school in Australia teaches ADR as a mandatory stand alone subject
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Some are still resistant to the idea of ADR being taught in the law degree – ie soft option, not law etc.
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We are hoping to create an easy to understand pitch to law faculties, to encourage them to rethink their curriculum
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R EASON 1
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Current teaching does not reflect legal practice
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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.
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R EASON 2
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Participation in ADR processes are mandatory under certain legislation
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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)
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R EASON 3
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Legal practitioners have a duty to advise clients about ADR processes
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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.”
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Barristers: See the Barristers’ Rules in each state
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If you have not been exposed to ADR instruction, you can’t meaningfully discharge this duty
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R EASON 4
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ADR instruction allows students to appreciate the importance of emotion (and emotional intelligence) in the resolution of disputes
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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
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R EASON 5
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Lawyers need to understand about the nature and theory of conflict
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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
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R EASON 6
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Teaching ADR supports law student psychological well-being
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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
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R EASON 7
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It is impossible to satisfy the Threshold Learning
Outcomes for Law (TLOs) without exposing students to ADR instruction
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 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)
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R EASON 8
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ADR instruction can help students to develop a positive professional identity
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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”
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R EASON 9
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NADRAC supports the mandatory inclusion of ADR in the law curriculum
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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
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R EASON 10
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Law students are demanding ADR knowledge and skills
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The law curriculum should not be driven by student demand but
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We should not underestimate subjects that law students value because they are viewed as being relevant to future legal practice
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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.
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