LWB 150 Lawyering and Dispute Resolution

LWB 150 Lawyering and Dispute Resolution

Semester 1, 2013

Reflective Practice Exercise

Whether ADR should be a mandatory subject in the law degree?

1. Reporting and Responding

This paper will provide a reflection on whether ADR should be a mandatory subject in the law degree. To form the basis of our discussion we interviewed X, the National Legal Partner responsible for the Special Practice Areas at a prominent Personal Injury firm in Brisbane.

The questions asked during the interview weredeveloped from our desire to explore the advantages and disadvantages of ADR processes, the practical application of those processes in today’s legal regime and the need to establish ADR as a mandatory subject in law school.

The following key issues wereidentified from the interview:

• The use of non-adversarial practice: X’s employment is in civil litigation and as such he engages in non-adversarial practice quite regularly. X asserts that ADR processes are utilised extensively within legal practice.
• The importance of ADR skills:Throughout the interview X emphasised the importance of the skills utilised during ADR processes and gave examples of how they can be applied in all aspects of a practitioner’s life.
• Practitioner’s involvement in ADR processes: X believes that practitioners have the ability to undermine the ADR processes by their adversarial mindset which may incite poor behaviour.
• Practical application of skills in education: X asserts that ADR should only be a mandatory subject in law school if the subject’s content focuses on the practical application of the skills required for successful non-adversarial practice.

The above gives rise to the question of whether the perspective would change if the interview was conducted with a practitioner who had expertise in another area of legal practice, such as Criminal law, which does not prima facie enforce mandatory ADR (in the form of Case Management Conferences) for each case that is filed in court.[1]

1. Relating
2. The use of non-adversarial practice

Through our employment at a personal injury firm, both team members have been involved in cases and litigation which have either federal or state jurisdiction and have therefore seen the extensive use of ADR process in practice and are familiar with the ADR legislative requirements and procedures which X spoke of during the interview. Furthermore, it is our exposure during our employment and our engagement with the unit content so far that has developed our existing impressions that ADR should be a mandatory subject in legal education and this perspective has only been reinforced by our interview with X.

2.2The importance of ADR skills

During the interview, X identified the skill of negotiation as the most significant skill he developed during his studies of ADR as it “manifests in a multitude of ways and environments”. We concur with X’s assertion. We have both studied contract law at school where we had to apply the underlying principles of negotiation for assessment (for example, identifying each parties WATNA’s and BATNA’s) however, it has only been through our employment and witnessing the practical application of these principles that we understand the significance and importance of these skills. The ADR skills we have learnt in our studies and through our employment can also be applied in our day to day living with work colleagues, friends and family members.

Furthermore, the below are skills raised by X that we do not currently hold and need to develop in order to enhance our future practice as solicitors:

-What to do when you are feeling engulfed by the mediation or negotiation

-How to handle different personalities and unruly practitioners

-How to prepare a case for mediation or negotiation.

2.3Practitioner’s involvement

X spoke of a number of examples of how practitioner behaviour can be detrimental to ADR processes (these examples have been expanded upon in 3.3). Through our development as practitioners we will have to ensure that we are keeping abreast of evolving skills and practice to ensure we are providing our clients with best practice.

2.4Focus on the practical application of skills in education:

During the interview X made the point that ADR should only be a mandatory subject in law school on the proviso that it is underpinned by a focus on the practical application of the skills required in ADR processes. X only studied ADR during his Masters Degree and noted that “it was a relatively weak course in that it lacked significant application”. Furthermore, X believes that if students are sent into legal practice without knowing how to apply ADR principles then “we’re sending lambs to the slaughter”. Both team members support this need and it has further encouraged one member, as the other has already completed the course, to enrol in LWB498 to glean practical experience in ADR processes.

1. Reasoning
2. The use of non-adversarial practice

It is argued that X is correct in his assertion that ADR processes are utilised extensively in legal practice. ADR processes are becoming less ‘alternative’ and more mainstream within Australia[2]. It is argued that ADR is institutionalised within our justice system and as such is utilised extensively in our legal practice.[3] This notion is demonstrated through the fact that at present, every state and territory has statues that provide for dispute resolution schemes[4] and that ADR is now commonly ‘annexed’ to court and tribunal processes as a standard component of case management.[5] In addition, in numerous areas of law, parties are required to participate in ADR processes prior to and/or after proceedings are commenced.[6]Furthermore, most legal disputes never come before the courts and those that do are mostly resolved by agreement between the parties rather than judicial decision.[7] In fact, fewer than 5% of all civil proceedings commenced result in a contested hearing.[8]

The importance of the large scale utilisation of non-adversarial processes is twofold. Firstly, from a broad perspective, practitioners need to be familiar with these ADR processes and practices in order to navigate the legal system[9] and secondly, from a client focused perspective, practitioners must be familiar with the processes to be competent in employing best practice for their clients[10] and to ensure that they do not detract from the ability of their client to reach an appropriate resolution.[11] It is quite simple, if we are not teaching our students to engage in a discipline that is extensively utilised in legal practice, then we are committing a great injustice to the legal system itself, the students who will become our legal practitioners and the clients which they will represent. ADR should be a mandatory subject in the law degree.

3.2The importance of ADR skills

X identified a variety of skills obtained due to his study and practice of ADR in the workplace and home environment which he believes every practitioner should be proficient in. Some of these include, “active and empathetic listening”, “problem solving” and “common sense and the ability to think rationally”.X regarded the ability to negotiate when conflict arises as having the most significance as he believes the skill of negotiation “manifests in a multitude of ways and environments”. X also touched upon the psychological impact of “conflict” and dispute resolution. Many social theorists see conflict as an adaptable source, which can be constructive, destructive and a creative option for wider growth[12]and it is argued that if one is equipped with the skills of negotiation, which are applied in the practice of ADR, then they will be in a better position to manage and identify conflict more effectively.[13]

Research has indicated that the skills grasped from the study of ADR can be carried across in everyday life[14] by a multitude of people.[15] In fact, ADR is often perceived as a “life skill”.[16] For example, study of ADR means that you have learnt how to manage yourself in a situation that requires negotiation and/or conflict and you are able to differentiate differences in peoples and parties’ positions and interests.[17]Furthermore, ADR teaches the skill and ability to separate your personal thoughts from your professional thoughts which is vital in instances where you may have to switch thinking between home and work life and in situations when “thinking like a lawyer” would not be appropriate.[18]Thefact that ADR skills can be extensively utilised in day to day livingfurther emphasises the importance of mandatory ADR practice in Australian law schools.

3.3Practitioner’s involvement

X believes that practitioners have the ability to undermine the ADR processes through their adversarial mindset and therefore there is great need to make ADR a mandatory subject in law school to combat this mindset by educating students as to the non-adversarial way of practice. This view is supported by Risking[19] who argues that lawyers exhibit a gatekeeper role in the legal system which means that ADR may rest heavily upon the attitudes and involvement of the legal profession.

It is argued that litigation and ADR are shaped by two distinct ideological frameworks.[20] The adversarial processes and mindsets of lawyers, who typically approach disputes in a competitive and rights-based manner, are inherently incompatible with the objectives and practice of non-adversarial processes which are premised on resolving disputes byengaging in creative problem solving to develop solutions acceptable and optimal for all parties.[21]Concerns have been raised that lawyers will adopt ADR “as another weapon in the adversarial arsenal to manipulate time, methods of discovery, and rules of procedure for perceived client advantage”.[22]

The 2011 National Alternative Dispute Resolution Advisory Council report[23] asserted that there are instances of conduct that can undermine particular ADR process. X spoke of one of these instances during the interview where at a mediation he attendedcounsel for the plaintiff showed numerous signs of contempt for the process and as a result costs were awarded against him and the dispute was adjourned to the civil list for trial.[24]The conduct which undermined the mediation was that counsel for the plaintiff attended the mediation half an hour late, produced a number of forensic medical reports that had not previously been disclosed to the mediator or the defendant, produced a lengthy accountant’s report that had never previously been produced or disclosed, refused to provide particulars of the plaintiffs claim when requested by the mediator saying “that is not the way I do things” and remonstrated with the mediator when requested to be reasonable. X also asserts that there are instances where advesarially minded litigants will use mandatory ADR as a tool to gain an advantage in litigation rather than to resolve it.[25] This is supported by a Canadian study[26] which documented lawyers admitting to the tactical use of mediation as either “fishing expeditions”or to protract litigation by feigning that settlement was being taken seriously.

Solicitors need to develop a non-adversarial mindset which features lateral thinking[27] in order to appreciate the different goals and values of ADR processes[28] which will ensure their success. Both practicing lawyers and ADR practitioners agree that lawyers can make a constructive and useful contribution to ADR processes[29] and it is because of the abovementioned reasons that ADR must be a mandatory subject in law schools.

3.4Focus on the practical application of skills in education

X identified the importance of practical based ADR studies stating that if students are sent to legal practice without knowing how to apply ADR principles then “we’re sending lambs to the slaughter”. If students do not have a practical understanding of these processes, could it be argued that universities are not fully equipping their graduates for the real world? Judy Gutman and Matthew Riddle[30] think so. They argue that the reality is ADR is an institutionalised practice throughout the Australian legal justice system and consequently is it vital that law students have competency in ADR processes. They also recognise the shift from “theoretical based” learning to “practice based” leaning. It is noted that few law schools in Australia offer significant education about ADR as part of their core curricula for law students[31] and in order for law students to be ready for practice, it is important that education reform takes place toacknowledge the importance of ADR as a core subject. The theory behind this is supported by Tania Sourdin.[32] It is believed, by Tania and echoed by Susskin[33] and McFarlane[34] that law students who understand ADR “will be able to function effectively in the justice systemand those who lack thisbasic education will find it difficult to function as a modern legal practitioner. Even those involved intransactional lawyering rather than dispute resolution or management will need to “get” ADR becausethey must draft clauses that support it and negotiate using processes developed in the ADR world.”

If ADR processes are a requirement in real practice, why should it not be a mandatory subject in law schools? After all, why master the theoretical underpinnings of the law if you are unable to adequately apply them in practice.

1. Reconstructing
2. Our future practice within the legal profession

The interview further signified the importance of acknowledging the non-adversarial role that we can play, as future practitioners, in the justice system. Neither team member, when thinking about their future as a practitioner, portrays themselves as a lawyer who follows the traditional adversarial role and as a result of the interview, and the unit content more generally, our views have been instilled and we hope that we are able to utilise ADR process as best practice.

One way in which the interview will inform our practice as lawyers was identified when X spoke of the physiological effects that the adversarial system can have on both practitioners and clients and highlighted the need for emotive thinking in non-adversarial practice. Prior to this interview the extent of the need for emotive thinking had not been realised and we now believe that development of emotional intelligence will be central to our being effective non-adversarial practitioners.[35]

One further feature of the interview which will inform our future practice was X’s description of practitioners having a “personal brand”. Prior to the interview neither team members had contemplated the notion of practitioners having a “brand” which they must uphold however, X raised interesting points in regards to practitioner’s unruly behaviour in ADR processes and practitioners having to be conscious that they are in the profession for a long period of time and should therefore ensure that they advocate for their client in a manner that promotes their “brand”, especially if they later wish to move to the bar where referrals will come from former colleagues. This notion of a “brand” will strongly inform our future practice because it can influence how we as practitioners are seen by our peers. Both our self images as practitioners are based on the notions of non-adversarialism whereby there is a focus on more than just strict legal rights, responsibilities, duties, obligations and entitlements[36] and we wish our “brand” to both reflect this and also that we take a comprehensive approach in that we consider the psychological, social, emotional and relational consequences of various legal course of action.[37]

4.2Development of competency in ADR processes

It is vitally important in all areas of life to reflect on situations and experiencesso that we can learn and grow as individuals. In the study of law, the practice of reflection has been identified as a student’s “key to survival”[38] and will assist students to develop their professional skills[39] and grow as practitioners and as such, we will undertake reflective exercises to ensure we develop our own competency in ADR processes. Furthermore, given that in ADR processes the focus is on resolving disputes byengaging in creative problem solving to develop solutions acceptable and optimal for all parties[40], we will endeavour to focus on the development of our emotional intelligence which will assist us in developing the relations skills, sense of purpose, empathy and self-awareness that will assist us in our roles as non-adversarial practitioners.[41] We will also continue to develop our competency by enrolling in further ADR units at university, taking advantage of the ADR process we are able to witness in the course of our employment and ensuring that we are keeping abreast of any developments within the ADR realm by perusing media and law society publications.

4.3ADR and practitioner well being

As previously stated, adversarial and non-adversarial justice are shaped by two distinct ideological frameworks[42] and the adversarial system, described as “zero-sum game” where one side can only progress if the other side looses[43], is believed to be the cause of unhappiness and dysfunction felt by many practitioners.[44] This is because the system is based on conflict resolution upon competition and discourages cooperative behaviour.[45] The development of ADR skills can play a positive role in the formation of a professional identity and allow students and practitioners to “cast off the shackles of adversarial behaviour”[46]and develop a professional identity that is more caring and helpful.[47] Furthermore, as ADR is often perceived as a “life skill”[48], there are many features which can provide positive influences on practitioner wellbeing. For example, the skill of negotiation allows practitioners to be in a better position to manage and identify conflict more effectively[49] and it is argued that this would afford them the ability to cope better in conflict situations.