The Need for Implementing ADR into Traditional, Law School Courses

 

Shannon P. Smith

Originally published: The WV Lawyer, November-December 2007

A few years back, the McGrate Report identified several "fun­damental lawyer skills" that all law students should have, including problem-solving, legal analysis and reasoning, legal research, factual investigation, communication, counseling, negotiation, litigation and alternative dispute resolution (ADR) procedures, organization and management of legal work, and recognizing and resolving dilemrnas.i Three of those skills directly relate to ADR. Although the McCrate Report does not require law schools to teach these skills, it advocates that these skills need to be learned and used contin­uously throughout one's legal career.

The ADR revolution has produced a redefinition of the practice of law. As more states create ADR statutes, ADR will increasingly become the problem-solving solution. Law schools, therefore, must prepare their students for this segment of practice. ADR course offerings have greatly increased, but many law schools still view ADR as non-tradi­tional and not substantive.

Students must recognize the implications of incorpo­rating ADR techniques into their legal profession. For exam­ple, students should have a hold of how to engage in successful advocacy within the framework of mediation, how mediation or other ADR procedures add value in settlement negotiations, and the logistical parts of selecting a mediator. In addition, there are noteworthy ethical issues that need to be examined. ADR can no longer be downgraded only to specialty elective courses. ADR occupies too important an area in the real world of practice, and it continues to grow. ii If the American legal system is to more fully embrace ADR, law schools must incorporate it into their programs.

Law schools around the country have gradually responded to the rise in ADR activity. More and more schools are recognizing the significance of including ADR classes in their curricula.iii Even law school accreditation standards now suggest that ADR be included as part of the professional skills curriculum.iv A 2000 survey by the ABA Section on Dispute Resolution listed 830 courses at 182 ABA-approved law schools.v On average, about twenty-seven per­cent of students at these schools took at least one ADR-related course.iv  Accordingly, almost all law schools offer dispute resolution courses, most with multiple offerings. However, it really only becomes a useful and effective tool if students are aware of its importance. There is a real need in law schools for ADR exposure. There are now professors who are skilled in the areas of ADR, but it is still seen simply as something that is nice or interesting and not what students are there to learn.

So the next thing that happens to ADR involves almost a rethinking of how one teaches in law school. Students currently learn by looking at litigation, which is needed to learn substantive law, but they then need to look at what other processes could have been used to resolve the case. The legal community as a whole needs to begin to understand that conflict must be resolved in a way that is going to not only remove the confrontation among the parties, but also equalize the continuing relationship. This can only be done by teaching the skills for resolving problems.

The first-year curriculum, possibly the best measure there is of what thinking like a lawyer means, has not changed much in 125 years. The procedure is that of a contest: students contest the value of different rules, majority and dis­senting opinions are contested, and the professor contests the students' understanding.vii Christopher Columbus Langdell's influence on the nature of the modern American law school curriculum is pretty well known. Essentially, the Langdellian pedagogy changed the focus of legal training to the classroom rather than through hands-on apprenticeship. Langdell'smeans teaching students to think like a lawyer.viii The use of appellate cases in instruction necessarily implies a litigation structure. This teaching method, most administrators would agree, is a rite of passage for all first-year law students. At the same time, this method forever shapes their approach to the law.

Exposure to ADR is designed to transform the students into informed lawyers and to make them aware of all of the dispute resolution options. Even for students who plan to never step foot in a courtroom, many of the ADR methods are useful in transactions, especially those learned in negotia­tion courses.

The regrettable, and yet most common, assumption is that legal writing courses represent actual legal practice. Focusing on this reductive skill repeatedly can send the objectionable message that the function of legal education is the ability to predict the outcome of litigated disputes. This seems completely at odds with an ADR emphasis because it focuses almost exclusively on the precedential effect of judicial decision-making rather than on the parties' interests, the dispute resolution process, or the lawyer's role in that process. An ADR outlook in the first-year curriculum, conversely, implies that formal reasoning from cases is only one of a lawyer's many tools and should be treated that way.ix

Administration is not the only obstacle in integrating ADR requirements in law schools. Many professors are reluc­tant, and some just outright refuse, to participate in any non­traditional requirements. Some of the reasons entail rational issues, but others involve concerns that may be easier to address, particularly if a school decides to approach any change as a long-term, incremental change. Professor Leonard Riskin of the University of Missouri School of Law suggests that there are four conditions for the successful adop­tion of an ADR program: a "lead" faculty member, a founda­tion of at least three informed faculty, strong decanal support, and an agreement about the worth of the program.x

There is a fundamental question presented when ADR courses are taught versus integrating ADR processes and theories into other, more traditional courses. If ADR is taught only as a separate course, the students study their way through the rest of law school with appellate cases, which is litigation and which is what gets engrained. If ADR is not introduced early on in other courses, typical students may very well become the lawyers who never perceive ADR as an equal way of resolving disputes.

Within the last decade, law school curricula have begun a process of reform. The most noteworthy addition to the mix has been the addition of clinics, which give students the opportunity to deal with live client representation. Another growth has been the emergence of other disciplines such as economics or literature. However, these developments have not necessarily confronted the adversarial perspective inherent in legal education.xi

The only realistic conclusion is that students, who have the opportunity to get the diverse and practical experience of ADR courses, will have a more complete and image of the legal system and a stronger sense of the alternatives they have for participating in dispute resolution as problem-solvers and litigators.

iMcCrate Report, ABA Section of Legal Education and Admission to the Bar, Legal Education and Professional Development: An Educational Continuum at 138 (1992).

iiOkianer Christian Dark, Transitioning from Law Teaching to Practice and Back Again: Proposals for Developing T a ykryers Within the Law School Program, 28 J. Leg. Educ. 1,, J'A (2004).

iiiCindy Fazzi, Today's School Days: Readin' Writin' ADR, 49 Dis. Res. J. 73, 73 (1994).

ivRobert B. Moberly, Introduction: Dispute Resolution in the Law School Curriculum: Opportunities and Challenges, 50 Fla. L. Rev. 583, 585 (1998).

vSurvey, American Bar Association, Directory of Law School Alternative Dispute Resolution Courses and Programs (2000).

viId. at Foreword.

vii Derek Bok, A Flawed System of Law Practice and Law Teaching, 33 J. Leg. Educ. 570, 582 (1983).

viiiLea B. Vaughn, Integrating Alternative Dispute Resolution (ADR) Into the Curriculum at the University of Washington School of Law: A Report and Reflections, 50 Fla. L. Rev. 679, 699 (1998).

ixKate O'Neill, Adding an Alternative Dispute Resolution (ADR) Perspective to a Traditional Legal Writing Course, 1998 Fla. L. Rev. 709, 711-12 (1998).

xLeonard L. Riskin, Final Report: Integrating Dispute Reso­lution Into First-Year and Other Law School Courses: Disseminating a Proven Reform, 50 Fla. L. Rev. 589, 606 (1998).

xiVaughn, supra n. viii, at 699-700.