ADR in Australian Legal Education

Alperhan Babacan and Oz Susler

Dr. Alperhan Babacan holds Honours degrees in Law and Political Science, a PhD and a Graduate Certificate in Tertiary Teaching in Learning. Dr Babacan is admitted as a Barrister and Solicitor of the Supreme Court of Victoria and High Court of Australia and has extensive experience in legal practice and legal education. In academia, Dr Babacan has held various senior positions including as Chair of Criminology at Navitas, deputy head of School at Swinburne university and as Director of the Juris Doctor program at RMIT University. Dr Babacan has extensive experience in unit and course development, accreditation and review. He has published very widely in areas of law, criminology and teaching and learning in the higher education sector with a specific focus on the scholarship of learning in legal education.

Much has been written about the benefits of ADR in legal education across the globe and in Australia.  Various reports over the last forty years have criticised the emphasis placed on  traditional Australian legal education – on the teaching of legal rules and doctrine and the focus on analysis and synthesis of these rules, coupled with the adversarial approach to legal education in the absence of skills training. The common thread running through these reports was that law graduates lacked practical legal experience and that there was a need to better align the provision of skills training and education around legal rules and theory in the legal education curriculum, so that students were provided with both academic knowledge and skills necessary for legal practice. The reports encouraged law schools to incorporate specific legal skills into the law curriculum.

Since the 1980s, law schools in Australia have incrementally incorporated the teaching of skills that form the basis of legal practice, evident through the introduction of clinical legal education (CLE) and alternative dispute resolution (ADR). The teaching of ADR to law students provides them with alternative dispute resolution options within an ethical framework, counters the formation of an adversarial legal identity and its vocational nature greatly assists to effectively impart lawyering skills. The most common forms of ADR that are taught in Australian law schools is mediation and negotiation.

In order to effectively build legal skills and to counter the formation of an adversarial legal identity, ADR needs to be included as a stand-alone and significant element of the law curriculum. Yet in Australia, there has been resistance to including ADR in the law curriculum[1] and differing approaches adopted by law schools to incorporate ADR in the law curriculum: it can be included as a specific ADR unit, incorporated into a particular law unit or can form part of a CLE unit.  Generally, ADR is included as an ‘add on’ to law courses with a minimalist approach taken by many law schools to its meaningful inclusion in the curriculum. This approach reflects the convergence of two competing functions of Australian legal education: the provision of education to law students with knowledge of rules and legal theory on the one hand, and the instilling of legal practice and alternative skills on the other.  James advances that legal education in Australia does not consist of a ‘stable and consistent body of knowledge and practices’ (James, 2004) and is characterised by six dominant competing discourses.[2]

He describes these discourses as ‘modes of power-knowledge’ and identifies these as doctrinalism, vocationalism, corporatism, liberalism, pedagogicalism and radicalism.[3]  These six approaches to legal education reflect the competing manner in which skills training is offered in the law curriculum, particularly with respect to the minimalist approach taken by law schools to include ADR in the law curriculum. In recognition of the importance of the key role ADR can play in ‘learning by doing’ and developing lawyering skills, La Trobe University Law School is one of the few law schools in Australia where Dispute Resolution has been included as a compulsory first year law unit.  

There have been calls for the inclusion of ADR as a mandatory part of the law curriculum.[4] These calls are highly justified given that ADR has been a mandatory feature of litigation processes for a considerable period of time. In addition, the inclusion of ADR as a meaningful aspect of the law curriculum will greatly assist law schools to meet the requirements of the Threshold Learning Outcomes (TLOs), developed and adopted by the Council of Australian Law Deans (CALD) in 2009. The TLOs reflect what a Bachelor of Laws graduate is expected to ‘know, understand and be able to do’ as a result of learning and cover areas relating to: knowledge (TLO 1), ethics and professional responsibility (TLO2), thinking skills (TLO 3), research skills (TLO 4), communication and collaboration (TLO 5), and self-management (TLO 6).[5]  

Over the years, some law academics have been advocating for the meaningful inclusion of ADR into the legal education curriculum. Such an undertaking needs to be informed by best practice and evidence and necessitates the allocation of resources by law schools.  Serious consideration needs to be given by law schools to include ADR in the law curriculum in a comprehensive manner to ensure that students are effectively educated and trained for legal practice.  

References

  1. Collins, P. 2015. “Resistance to the teaching of ADR in the legal academy”,  Australasian Dispute Resolution Journal, 26(2): 64-74.
  2. James, N ‘Australian Legal Education and the Instability of Critique’ (2004) 28 Melbourne University Law Review 375-405.
  3. Ibid.
  4. See e.g. Duffy, J. and Field, R. 2014. “Why ADR must be a mandatory subject in the law degree : A cheat sheet for the willing and a primer for the non-believer”, Australasian Dispute Resolution Journal,25(1): 9-19.
  5. Threshold Learning Outcomes. 2010.  Learning and Teaching Academic Standards Project  Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010, Australian Learning and Teaching Council.
    <https://cald.asn.au/wp-content/uploads/2017/11/KiftetalLTASStandardsStatement2010.pdf>.



This entry was posted in Dispute resolution and tagged , , by Oz Susler. Bookmark the permalink.

About Oz Susler

I'm the Director of Post-graduate (Coursework) Programs, lecturing in the JD and LLM Programmes at La Trobe University Law School. I have qualifications in arts, education and law from the University of Melbourne and La Trobe University. I completed my doctorate at La Trobe University on international arbitration. I am a graduate member of the Chartered Institute of Arbitrators and an accredited mediator under the NMAS. My research has been primarily focused on international commercial arbitration. I am passionate about coaching tomorrow's lawyers in developing ADR skills through both my teaching and my coaching practice of students in arbitration and mediation. I realised the significance of offering alternatives to litigation when I was in practice as a commercial lawyer. This interest led me to conduct research in international arbitration. My DR research interest has been on how state courts approach jurisdictional issues relating to the arbitrators' jurisdiction in international commercial arbitration. I have also published on investor state dispute settlement systems and received awards for teaching, including services in teaching ADR. Currently, I am involved with a research project in Online Dispute Resolution, which I hope to share the findings of on the ADRRN Blog in the future.

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