It’s a No-Brainer – Dispute Resolution Should Be a Compulsory Part of the Australian Law Degree

I haven’t heard anything official yet – but on the grapevine it seems that the Law Admissions Advisory Committee (LACC) might be listening to those of us advocating for the recognition of DR in the law curriculum.

Members of the ADR Research Network, and the DR community more broadly – particularly the DR legal academic community – have long been arguing that the law curriculum needs to better integrate ADR knowledge, skills and attitudes if law schools are to prepare their students adequately for entry into the legal profession and the wider world of work. This view was very clearly reflected in the Threshold Outcomes for Law (Sally Kift, Mark Israel and Rachael Field, Learning and Teaching Academic Standards Project: Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010 (Australian Learning and Teaching Council, 2011)).

In March 2015, members of the Wellness Network for Law (Madeleine Dupuche, Lecturer, College of Law, Dr Anna Huggins, Senior Lecturer, QUT Faculty of Law, and myself) made a submission to LACC’s Review of Academic Requirements for Admission to the Legal Profession.  That review is reconsidering the content of the Priestley 11 – the 11 subjects required for eligibility for admission to legal practice.

Our submission made a number of recommendations. We argued that the law curriculum should be intentionally designed to better equip law students for success in legal education and in the law, and that an important strategy in achieving this involves including DR as a core subject in the law degree (we chose to use the term ADR for clarity in our communication with the members of LACC who we thought would be more familiar with it).  The relevant part of the submission reads as follows:

Alternative Dispute Resolution

In response to paragraphs 6.4 and 6.5 of the LACC discussion paper the Network makes the following submissions:

  • Alternative Dispute Resolution (‘ADR’) should be added as an academic requirement.
  • Field and Duffy argue that the majority of Australian law schools are fundamentally failing future practitioners, and the future of the legal profession more broadly, by only offering ADR as an elective subject, thereby highlighting the disconnect between the law school curriculum and 21st century legal practice (James Duffy and Rachael Field, ‘Why ADR must be a Mandatory Subject in the Law Degree: A Cheat Sheet for the Willing and a Primer for the Non-Believer’ (2014) 25(1) Australasian Dispute Resolution Journal 9). They contend that the following reasons, and others, exist for including ADR as a compulsory subject in the law school curriculum:
    • An absence of compulsory ADR does not reflect current legal practice (for example, ‘it has been estimated that the number of commenced civil actions that culminate in adjudication is less than 5%’;
    • Participation in ADR processes is mandatory under legislation in many Australian jurisdictions;
    • Lawyers have ethical duties to advise about ADR;
    • Good lawyers are emotionally intelligent and ADR instruction contributes to the development of emotional intelligence;
    • Lawyers need to understand about the theory and nature of conflict and this necessarily requires instruction;
    • It is impossible to meet the threshold learning outcomes without exposing all students to ADR instruction;
    • ADR instruction can help students develop a positive professional identity;
    • Teaching ADR supports students’ psychological well-being.

These are compelling reasons for the inclusion of ADR as an academic requirement.

  • The High Court of Australia has recently emphasised the need for practitioner cooperation in the resolution of disputes. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 (6 November 2013), the Court emphasised the over-riding purpose of the Civil Procedure Act 2005 (NSW) (‘CPA’) as being the facilitation of the just, quick and cheap resolution of the real issues in the dispute. It noted that the solicitors involved had a responsibility to conduct themselves in a way which would assist the court to facilitate the overriding purposes of the CPA: ‘[Cooperation] is an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice’ [at 67].
  • The National Alternative Dispute Resolution Advisory Council (‘NADRAC’) supported the mandatory inclusion of ADR in the law curriculum, particularly in its 2012 Report: Teaching Alternative Dispute Resolution in Australian Law Schools. That Report made the case for compulsory ADR in the law degree based on the results of a survey of Australian law schools conducted by NADRAC during late 2010 and early 2011; views expressed by forum participants during a panel discussion facilitated by NADRAC at the RMIT University: ADR in Legal Education and Promoting Student Wellbeing Forum, and NADRAC’s own research, analysis and consideration of the topic, including substantial input from a number of NADRAC members with long-standing and specialist expertise in the tertiary sector.In a 2009 report, NADRAC also stated: ‘NADRAC is of the view that more professional development is needed. NADRAC believes that better training at universities is required and that ADR must be elevated from a mere adjunct to civil procedure or litigation subjects to being taught as a full course. An ADR course should be a compulsory core subject that is a prerequisite for admission’ (NADRAC, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (September 2009), 62)

(Note that NADRAC  was unfortunately abolished in late 2013 but its work still remains very valuable and relevant: See Dr Becky Batagol’s Blog for the ADR Research Network: Dumb Decision— The Closure of NADRAC posted on 12/11/2013)

  • If a dispute resolution culture is to be achieved in Australia, this must necessarily commence at a grass-roots level in Australian law schools, where it is appropriate for ADR to be a compulsory subject for law students. For this reason, and the reasons articulated above, ADR should be included as an academic requirement for admission to practice.

Fingers crossed we will see some official good news about the inclusion of DR in a revised articulation of the Priestley 11 soon!

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About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

One thought on “It’s a No-Brainer – Dispute Resolution Should Be a Compulsory Part of the Australian Law Degree

  1. I agree with the argument that dispute resolution processes, theories and practices should be an embedded part of the law degree. Frankly, how can we equip students to deal with legal problems without equipping them to refer to, advise about or engage in dispute resolution methods? I must admit to having a greater interest in what prescriptive content will come out of the Priestley 11/LACC requirements than what more can be squeezed into the law degree. Although the existing topic areas all have some importance, the prescribed areas of knowledge under each topic are well overdue for review within the context of the modern legal system. I think one of the great challenges is finding the right balance between setting prescribed elements to define what is a law degree while enabling legal educators to be innovative, and to adapt to the evolution of the practice of law and likely career paths of law graduates. At the moment we have a messy mix of Law TLOs, into which we must embed the purely content focused LACC requirements into TLO1, plus our own institution’s particular areas of emphasis and expectations of graduates. I hear cries about the overcrowded curriculum stifling innovation and this is a worry. I guess I’m commenting here because I think we will need to engage in the holistic revision of the LACC requirements to succeed in arguing that dispute resolution ought to be a prescribed part of the law degree. We also need to be specific about what should be prescribed. Is it another content focused LACC requirement we want, or something different?

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