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Student reﬂections on the beneﬁts of studying ADR to provide experience of

non-adversarial practice
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Student reflections on the benefits of studying
ADR to provide experience of non-adversarial
practice
Pauline Collins*
This article reflects on the inclusion of an alternative dispute resolution (ADR)
course as a core component of the Bachelor of Laws (LLB) curriculum for a
law degree commenced in 2008. An outline of the course is provided. Student
reflections of their experience of the course are reported and linked to three
of the threshold learning outcomes (TLOs) for an LLB degree established by
the Law Discipline Group to guide legal education. The reflections indicate
positive possibilities for achievement of the TLOs and changing the student
experience of law schools by the inclusion of ADR as a core course.
INTRODUCTION
Alternative/appropriate dispute resolution (ADR) has strong advocates for its inclusion in Australian
law curriculums.1 For this there are many reasons, including the growing trend towards adoption of
non-adversarial approaches for managing conflict. Currently, legal education is also undergoing a
major transformation2 in Australia with the establishment of a Tertiary Education Quality and
Standards Agency – a national oversight body that is promoted as the new regulation and quality
assurance “watch dog” of tertiary education standards. The Commonwealth government, as part of its
initiatives in higher education, commissioned the Australian Learning and Teaching Council (ALTC)
to lead the Learning and Teaching Academic Standards Project. This project defines key learning
outcomes in order to guide curriculum development and assessments towards ensuring graduates
achieve competence threshold levels in their chosen discipline. Within the Bachelor of Laws (LLB)
degree, six threshold learning outcomes (TLOs) were developed.3
ADR is now a part of the legal landscape, encouraged by legislatures to lessen the demand on
public justice, with the majority of matters reaching settlement before litigation.4 Douglas has
investigated the teaching of ADR in law schools and concluded that the call for increasing ADR is
*
LLB (Adel), B Vis Arts (USQ), Grad Dip in Prof Com (USQ), LLM (UQ); Senior Lecturer, School of Law, University of
Southern Queensland.
1
See, for example, Douglas K, “The Teaching of ADR in Australian Law Schools: Promoting Non-adversarial Practice in Law”
(2011) 22 ADRJ 49; Gutman J, Fisher T and Martens E, “Why Teach Alternative Dispute Resolution to Law Students: Part 1;
Past and Current Practices and Some Unanswered Questions” (2006) 16(1)-(2) Legal Education Review 125; Douglas K,
“Shaping the Future: The Discourses of ADR and Legal Education” (2008) 8(1) Queensland University of Technology Law and
Justice Journal 18.
2
For a thorough overview of the development of legal education in Australia see, Chief Justice Robert French, Legal Education
in Australia – a Never Ending Story, Paper presented at the Australasian Law Teachers’ Association Conference (Brisbane,
4 July 2011). See also Boyer BB and Cramton RC, “American Legal Education: An Agenda For Research And Reform”
(1973/1974) 59 Cornell Law Review 221 at 227: “A striking as well as depressing aspect of current debates over the future
shape of the law school curriculum is the ancient lineage of many of the major issues, and their cyclical reappearance in the
literature on legal education.”
3
Kift S, Israel M and Field R, Learning and Teaching Academic Standards Project: Bachelor of Laws Learning and Teaching
Academic Standards Statement (Australian Learning and Teaching Council, December 2010), http://www.olt.gov.au/resource-
law-ltas-statement-altc-2010 viewed 26 June 2012. The six TLOs are: Knowledge, Ethics and Professional Responsibility,
Thinking skills, Research Skills, Communication and Collaboration, and Self-management.
4
See NADRAC, Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (2009).
Recommendation 4.3 supports core legal education inclusion of dispute resolution. See also Access to Justice Taskforce,
Strategic Framework for Access to Justice in the Federal Civil Justice Sytsem (Attorney-General’s Department, Sepetember
2009), http://www.ag.gov.au/a2j viewed 26 June 2012, Recommendation 12.1.
204 (2012) 23 ADRJ 204
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Student reflections on the benefits of studying ADR to provide experience of non-adversarial practice
valid.5 A shift away from teaching the more traditional and familiar adversarial approach in legal
education in Australia can be challenging for legal educators who have been taught and have practised
law this way. However, as this article evidences through student testimonials and scholarly literature,
it is timely for law schools to expand to include newer, alternative approaches in order to raise the
quality of their curricula.
The University of Southern Queensland (USQ) provides a case study of the positive learning
outcomes that can be achieved by the introduction of an ADR course into a law program. USQ
established a law degree in 2008, across two campuses with a large cohort of on and off-campus
students. The new law school took seriously the need to teach ADR by introducing it as a core course.
The course Legal Conflict Resolution (LAW2206) is offered in third year6 via intensive mode, on each
of two campuses. This delivery mode provides different student cohorts an opportunity to participate
in an experiential and dialogical teaching pedagogy with specialist guest lecturers modelling a range
of approaches to conflict management.
This article begins with an overview of the course, its assessment and teaching and learning
objectives. Student reflections regarding their experience of the course follow. These are considered
under three broad headings reflecting the following TLOs: Communication and Collaboration,
Thinking Skills, and Self-management. The main proposition is simple: teaching ADR in the legal
curriculum may have positive effects on student wellbeing.7 Hence, the focus of the discussion is on
the teaching of an ADR course that embodies specific TLOs to improve the quality of the course and
student responses to this. Inferences may be drawn as to how this approach can be used to bring fresh
perspective to law curriculum design which may positively influence students’ mental well-being.
LAW2206: LEGAL CONFLICT RESOLUTION

The course LAW2206, created in 2009, has been delivered over three semesters since 2010. The
inclusion of ADR as a core course is rare since it is not included in the Priestly 11, which at this stage
dictates to a great degree the nature of the law curriculum in Australian law schools.8 However, the
designers of the new degree made a deliberate choice for a third wave law school9 to provide
vocational preparation for core lawyering skills10 because the renewal phase of legal education is
attempting to better situate law students for the 21st century. The course also can be taken as an
5
See further Sullivan W, Colby A, Welch Wegner J, Bond L and Shulman L, Educating Lawyers: Preparation for the
Profession of Law (2007) (the Carnegie Report) p 114, which stated there is value in the including “of ADR in the legal
curriculum”; it can be seen as an opportunity to engage students in active, experiential learning that promotes reflection on
“professional identity, responsibility, and conduct”. See also Stuckey R et al, Best Practices for Legal Education: A Vision and
a Road Map (2007); Australian Law Reform Commission, Review of the Adversarial System of Litigation: Rethinking Legal
Education and Training (1997) at [5.7].
6
After a curriculum review in 2011, a core ADR course will now be delivered in first year from 2013.
7
Field R and Douglas K, Teaching Non-adversarial Practice in the First Year of Law: A Proposed Strategy for Addressing High
Levels of Psychological Distress in Law Students, Paper presented at the First Year in Higher Education Conference (Brisbane,
29 June-1 July 2011); Howieson J, “ADR Education: Creating Engagement and Increasing Mental Well-being Through an
Interactive and Constructive Approach” (2011) 22 ADRJ 58; Douglas (2008), n 1; Gutman J, Fisher T and Martens E, “Teaching
ADR to Australian Law Students: Implications for Legal Practice in Australia” (2008) 19 ADRJ 42; Gutman et al, n 1.
8
Consultative Committee of State and Territory Law Admitting Authorities (chaired by Justice LJ Priestley), Discussion Paper
on Uniform Admission Requirements (1992) suggested the following areas of law which admitting authorities adopted as
requirements for admission: criminal law and procedure, torts, contract, property (including Torrens System Land), equity
(including trusts), administrative law, federal and State constitutional law, civil procedure, evidence, company law, and
professional conduct (including basic trust accounting). See French, n 2, pp 21-22.
9
“Third wave” law schools include those law schools established since the 1990s that aim to offer an alternative style degree to
that which can be obtained at the first and second wave “older” law schools.
10
The Access to Justice Report, n 4 at [2.21] highlighted the need for curriculum to extend beyond content towards skills and
values: “[W]hat lawyers need to be able to do [rather than] anchored around outmoded notions of what lawyers need to know.”
See also Weisbrot D, “What Lawyers Need to Know What Lawyers Need to Be Able to Do: An Australian Experience” (2001)
Journal of the Association of Legal Writing Directors 21.
(2012) 23 ADRJ 204 205
Collins
elective by law students studying the Juris Doctor and by social science students. This introduction of
non-law students not only reflects the range of disciplines practising ADR but also brings a refreshing
new perspective to law students’ world views.
The course is offered face-to-face via an intensive mode, with four two-day intensives held across
campuses.11 This affords off-campus students the same opportunities to attend intensives as on-campus
students. The first intensive, repeated at both campuses, covers “conflict and communication theory”
and “interviewing and negotiating”. The second, “theories and principles of mediation” and
“mediation in practice”, with the third intensive covering “legal issues/ lawyers in mediation” and
“changes and choice in conflict resolution”.
The learning objectives of the course are for students to gain:
• a knowledge of the nature of conflict;
• an understanding of the fundamentals of communication;
• the skills and techniques required for interviewing and negotiating;
• the theories, principles and practices of mediation;
• an understanding of, and ability to critique, alternative conflict resolution processes;
• legal issues involved with the practice of conflict resolution in Australia; and
• an understanding of, and ability to evaluate, the role of different conflict resolution processes
within a changing legal landscape.
Specialist guest speakers are included in the facilitation of learning at the intensives, providing
students with exposure to differing approaches to ADR. These guests provide opportunities for
students to engage with and learn from professionals specialising in different aspects of law and
mediation. This promotes a rich and engaging learning experience, where students can question and
discuss aspects of different practice environments and consider their future possible career
directions.12
Students’ lives are nowadays increasingly busy, with competing family and work demands. For
this reason, intensives are held on a weekday (Friday) and weekend (Saturday), allowing greater
opportunity for participation. The intensive mode also allows a higher degree of engagement and more
focused learning that facilitates two-way student participation. The online environment allows for the
intensives to be audio and film recorded and streamed through the study desk for students who cannot
attend.
ASSESSMENT
In order to ensure students continue to engage with the course materials, which are provided online
and via a CD, there are online discussions posted for each module and hybrid summative/formative
multiple choice tests at the end of each of the modules readings. Students receive a mark (15%) at the
end of the course based on their timely completion of these tests, together with the achievement of at
least a pass in each test. The online discussions are assessed (20%) against criteria provided to the
students in advance and they generate a lively interactive response. To accommodate students’
exploration and identity of their own interests and to allow for flexibility, a range of discussion topics
are posted at the end of a module’s readings for the students to choose from. The amount of the online
activity13 is indicative that students learn not only from their own readings and responses, but also by
reading the other student’s posts across a range of topics creating a shared collaborative online
learning environment.14
11
The campuses are 110 kilometres apart.
12
Field R and Duffy J, “Better to Light a Single Candle than to Curse the Darkness: Promoting Law Student Well-being through
a First Year Law Subject” (2012) 12(1) QUT Law & Justice Journal 133 at 148-150; see also Reid A et al, “Identity and
Engagement for Professional Formation” (2008) 33(6) Studies in Higher Education 729.
13
The online statistics report at its peak reached 3,154 hits from a student cohort of over 100 students.
14
See, for example, Nevgi A, Virtanen P and Niemi H, “Supporting Students to Develop Collaborative Learning Skills in
Technology-based Environments” (2006) 37(6) British Journal of Educational Technology 937.
206 (2012) 23 ADRJ 204
The two main assessment items are a reflective written assessment (30%) requiring the students to
document and respond to their role-plays at the second intensive, thereby linking their experience to
the theory. An alternative written paper is provided for students who have not been able to attend the
second intensive. This involves a conflict analysis based on application of conflict theory and selection
of an ADR method with discussion of the preparation they would undertake to follow through the
chosen resolution method for the conflict they have diagnosed. Lastly, a research paper (35%) allows
the students to demonstrate written communication skills and research at a deeper level of engagement
with an area of the student’s interest. The students have a choice of topics allowing them to develop
and express their personal interests. Popular topics are confidentiality, power imbalance and good
faith. This assessment allows the students to appreciate the complexities surrounding the practice of
ADR and overcome any perceptions that ADR is just a “feel good” skills course lacking substantive
law and theory:
I have learned some important theories behind the mediation process – I had no idea it was so heavily
influenced by theories! As a practical person, I found this aspect of the course difficult … but I can see
how it can assist the process to have knowledge of theoretical principles of ADR. (Student 29)
The student reflections used in this article have been drawn from a final reflection post to the
study desk (from across three semesters of course delivery) in which the following question was
posed:
Describe some important things you have learnt in the course and if this has changed your
thinking/approach to dispute settlement. What areas do you think you need to know more about and to
develop in yourself?
Ethical consent to publish students’ de-identified, numbered, responses after the course closure
has been obtained from the students. There are 36 students’ comments referred to in this article as a
representative selection; the individual students are identified by a number.
Recent reports on curriculum renewal15 have placed importance on doing, rather than knowing.
The TLOs emphasise this and ADR is a means by which many of these learning outcomes can be
facilitated. The following part of this article examines student responses to the LAW2206 course that
embeds the three TLOs, starting with communication.16
COMMUNICATION
The communication TLO is developed in the Practice Guide TLO5, which acknowledges it requires
more than just teaching written and oral communication such as “letter writing, negotiation or
advocacy” but involves:
A rich context for communicating with clients and other stakeholders is required … teachers should first
start with basic communication theory and the development of interpersonal skills. The importance of
these … should be established so that students are motivated to develop these skills personally … and
be able to choose the means … of communication that suits the context and audience.17
Lack of communication skills, in particular the underlying theory of communication, can lead to
law students feelings of helplessness, for instance, when confronted with trying to get information
from a client in an interview. LAW2206 teaches this skill through engaging with communication
theory and the research literature. These techniques are then practised by the students in a way that
enhances active listening, acknowledgement and response to non-verbal cues (including emotional
cues) and understanding of one’s personal values and the impact that may have on the communication
dynamic.
15
Kift S, “21st Century Climate for Change: Curriculum Design for Quality Learning Engagement in Law” (2008) 18 Legal
Education Review 1.
16
It does not mean that the other three TLOs: knowledge, ethics and responsibility, and research are not also involved in ADR
but they are implicit and not the focus of this article.
17
Wesley S, Good Practice Guide (Bachelor of Laws) Communication (Threshold Learning Outcome 5) (ALTC, 2011) p 15.
The guide discusses utilising communication discourse experts and recommends a number of communication theory texts but
surprisingly not ADR or the literature that supports ADR.
(2012) 23 ADRJ 204 207
Collins
Legal education that focuses on case analysis and appellate law is not concerned with educating
students at the subtle communication level demanded of mediators,18 such as the non-verbal,
emotional and interpersonal communication level.19 Students who learn to become aware of an
individual’s non-verbal cues are aided not only in their own self-awareness within personal
relationships and interactions, but are provided with knowledge and skills to overcome factors that
may otherwise lie dormant.20 This is highlighted in the following student reflections:
Something I found really valuable … was the understanding of the different types of conflict, conflict
responses and communication skills. I’ve always been a “listener” and now I understand something of
why that can help others. I have tried to apply these skills to my everyday communications and I can
think of at least one personal conflict that has resolved peacefully and constructively because of them.
(Student 28)
I have found that some of the techniques used by mediators that I have learnt … such as effective
communication skills (questioning) and active listening, are assisting me on a day-to-day basis. (Student
20)
Students are also required to consider cross-cultural communication and have the benefit of an
invited Indigenous speaker to address them.
Through the study desk, students are encouraged to respond to the tasks and readings by
observing the “total communication” experience in their daily lives and to practise communication
techniques. This assists them to reflect on their awareness at a meta-level of how this may alter
outcomes. Videos reinforcing these communication techniques are made available online and through
the library so they can explore the skill in depth. This increases observation of how we communicate,
for example the simple change in choice of language such as using the word “I” as opposed to “you”
can alter outcomes:
I didn’t realise how important and essential the types of words used were and also, the types of
questions and how you should phrase those questions. How I phrase questions would definitely be an
area for personal development in order to take into account people’s emotions and feelings. (Student 25)
Mediation also allows parties to express their interests and personal feelings about the dispute which
can be therapeutic … To be able to speak freely about their issues and to know that you are being heard,
and not judged, can be quite reassuring. (Student 14)
Students could practise this knowledge during the second intensive and reflect openly on the
differences they noted from an adversarial approach:
I need to work on my impartiality and try to avoid letting my preconceived notions get in the way. I also
need to develop a less adversarial nature in the way I approach hesitant participants in mediations – I
ended up wanting to grill people. (Student 3)
I found it impossible to allow the parties to communicate with each other and sort out their problems. I
wanted to tell them what their problem was and how to fix it. (Student 4)
I really appreciated the communication break downs … I have learnt a lot about the way in which
communication works at a deeper level. The communication models also taught me a more in-depth
thought process. (Student 5)
Through role-plays students experience the different roles of mediator, party and partisan advisor,
in order to develop empathy. Instead of feeling they have to battle as champion for their clients, they
can work collaboratively, a requirement of TLO5, with the party’s best interests being met through
win/win resolutions. Students observed:
18
Collins P, “Mediators’ Authentic Presence: Ways of Knowing our Primitive Selves” (2010) 21 ADRJ 85. For an early analysis
of the problem in United States law schools, see Stone E, “Communication Skills Offerings in American Law Schools: A Survey
by the Howard University School of Law” (1977/1978) 29 Journal Legal Education 238; Bowling D and Hoffman D, “Bringing
Peace into the Room: The Personal Qualities of the Mediator and their Impact on Mediation” (2000) (Jan) Negotiation Journal
5.
19
See Sanson M, “Thinking Like a Lawyer” (2006) 1(1) Academics Forum/Legal Education and Professional Development
Committee News 20 at 21, which emphasises “facts over emotions”.
20
Collins, n 18.
208 (2012) 23 ADRJ 204
I really enjoyed learning about the therapeutic side to conflict resolution … I know how to argue a point
(it’s one of the reasons I chose to study law) but it would be great to learn more about the
communication and body language aspects as I believe this could be very useful in relation to client
affairs as well as dealing with opposing parties. You don’t learn much about these things working at a
law firm – all you know is they are the “other side” and you’re not supposed to like them. (Student 11)
I was sceptical about the benefits of mediation … I began working in a law firm at the age of 16 … It
has been constantly stated to us that we defend our client’s rights and protect these at all cost and this
has been the only real approach that I have ever been exposed too. I have only ever really known the
adversarial approach … this provides me with an area for growth. (Student 13)
Other students in class have experienced the same epiphany … Mediation can offer a solution that both
parties are actually happy with. This is simply not a reality in traditional litigation. (Student 1)
These reflections are symptomatic of the student response and reflect an awakening of a new
awareness of the impact of communication on conflict, not only how it arises, but how it can be
de-escalated. Such knowledge will assist in the students developing interpersonal client skills and give
them tools with which to build their confidence for engaging in a profession which is largely about
conflict management. These skills link with TLO5’s requirement that students develop their
interpersonal skills as appropriate to different contexts. These reflections also apply to the TLO of
“thinking like a lawyer”. This thinking largely adopts a logical vertical formalistic legal reasoning
approach that feeds into an adversarial style designed to have “their client” win.
THINKING SKILLS
TLO3 addresses the thinking skills required by law graduates focusing on the meaning of what it is to
“think like a lawyer”. The emphasis in the Practice Guide TLO3 is on case analysis, legal reasoning
and statutory interpretation skills although the dangers of this are discussed, and therapeutic and
restorative justice are offered as counterpoints.21 More interesting for ADR is the requirement not only
to have critical thinking, but also creative thinking. This introduces a move from vertical logical
thinking to a lateral creative thinking approach which considers the bigger picture, challenges
assumptions and allows for greater flexibility. ADR involves practitioners being able to think
creatively in assisting the parties to express their underlying interests and find ways to resolve
conflicts in which they are “stuck”.22 Thus the important aspects of this TLO for ADR and law
graduates is the requirement that one can “generate appropriate responses to legal issues, by engaging
in critical analysis and make a reasoned choice amongst alternatives; and to think creatively in …
generating appropriate responses”.23
Students learn to develop a creative thinking approach to assist parties to get to underlying issues,
rather than taking a logical vertical positional bargaining approach often adopted in law to gain only a
financial win. This is done through brainstorming possible ways forward and “reality testing” parties
views on the conflict to break impasses.
This move to a less adversarial approach is enshrined in legislation and is a factor students will
have to face in their work lives. As lawyers, they will need to be able to give clients advice on the
most appropriate conflict management response with a view to encouraging parties to exchange
information in a genuine manner to help resolve their dispute. The latest in legislated encouragement
for the use of ADR is the Civil Dispute Resolution Act 2011 (Cth),24 which encourages early resolution
of disputes through alternatives other than court and also aims at overcoming barriers to accessing
justice. This legislation encourages parties to ensure they have taken “genuine steps” to resolve their
dispute before the matter proceeds in the Federal Courts. Importantly, for lawyers, is that costs may be
awarded against them under s 12(2) of the Act for failure to comply with their duties.
21
James N, Good Practice Guide Thinking Skills TLO 3 (ALTC, 2011); James N, “Logical, Critical And Creative: Teaching
‘Thinking Skills’ To Law Students” (2012) 12(1) QUT Law & Justice Journal 66.
22
See, for example, Hoskins ML and Stoltz JM, “Balancing on Words: Human Change Processes in Mediation” (2003) 20(3)
Conflict Resolution Quarterly 331.
23
James (2011), n 21.
24
This was in response to the NADRAC Report, n 4.
(2012) 23 ADRJ 204 209
Collins
It is concerning then, particularly at the third year level, that students report a lack of awareness
of alternatives to litigation. This confirms an absence of exposure in other law courses to ADR perhaps
confirming the lag of the LLB curriculum and Priestly 11 in addressing the new paradigm in legal
practice and remaining overly focused on positive appellate case based teaching pedagogy:
[A]fter taking part in this class it has opened my eyes up to realising that litigation is not always the
only option to settle a dispute … I used to believe that going to court or litigation was the only way that
disputes were settled. (Student 6)
At the start of this course, I knew literally nothing of ADR and mediation, but by the end of it I feel like
I have a good grounding in the basics, and most of all have been made aware that there are alternatives
… I found this course to be the most effective of all my law courses to date. (Student 7)
Students can approach conflict other than from the pessimistic worst case scenario, thinking like a
lawyer often entrenches in a lawyer’s mind. Kelk et al suggested “someone with training in mediation
counselling might have a much more positive orientation to quite similar professional situations”.25
Dispute management involves parties looking for genuine creative solutions to attempt to resolve
conflict collaboratively and in good faith. ADR practitioners are to assist parties in their
communication during the process, with the aim of managing the conflict in a manner that may satisfy
the interests of all the parties while allowing parties to maintain control over the solutions. When
acting in the role of mediator they are not representing a party, giving legal advice. Nor do they act on
instructions, coerce or make decisions on behalf of parties. This allows the mediator to remain at arms
length from the client’s problem in a way that the adversarial lawyer may not:
I have acquired valuable practical skills that can be applied in the workplace … This collaborative
approach ensures that principles of empowerment and self-determination are upheld … Ideally, both
parties can walk away from mediation sharing a common ground and understanding, and most
importantly, a respect for each other … retaining an amicable relationship. (Student 1)
Through participating in the role-plays I found that an inability to acknowledge the underlying issues in
a given situation probably stems from the fact that we are all law students and we tend to focus
primarily on data conflicts. (Student 26)
ADR can give law students awareness of the different styles and approaches that are useful in a
profession engaged with managing conflict. This balance was appreciated by LAW2206 students.
Some expressed relief knowing there may be another approach other than an adversarial approach:
I love the fact ADR is an interactive way for parties to resolve their own issues through facilitated
communication. I believe that people “get more” out of the legal system by engaging in resolutions
themselves. Mediation allows parties to open up and discuss their concerns – thus discovering more
about themselves and their own desires … Mediation is another way that the perceived view of lawyers
can be improved, as they are seen not as foreign-speaking professionals with limited time to greatly
understand people’s concerns, but they are right in there … eager to listen and facilitate the problem at
hand. They do not overly assert their authority but create a safe and relaxed environment where people
can open up. (Student 8)
Through my studies, an adversarial approach is ever present so [ADR] … came as a nice change
because it emphasised the parties resolving conflict. (Student 9)
[N]ow I am somewhat relieved that not all issues have to be court oriented. (Student 10)
Kelk et al have urged legal academics to consider:
the importance of developing different skills for managing workplace issues and personal issues. While
adopting styles of vigorous competition or high levels of caution in a particular workplace, or
educational setting, may be appropriate, such styles of behaviour are not likely to have satisfactory
outcomes in everyday life.26
Kelk et al do not propose a change in teaching how to think like a lawyer, but rather raising
awareness that a style of thinking is encouraged when acting as a lawyer that may not be appropriate
25
Kelk N et al, Courting the Blues: Attitudes Towards Depression in Australian Law Students and Legal Practitioners,
(University of Sydney, Conducted in conjunction with the Tristan Jepson Memorial Foundation, 2009) p 46.
26
Kelk et al, n 25, p 49.
210 (2012) 23 ADRJ 204
in everyday lives.27 This requires an ability to understand thinking patterns on a meta-cognitive level;
to identify which is operating at any particular time; and to be able to switch between them. Some
professionals may be able to separate work from home life. For lawyers, however, being trained to
think like a lawyer makes it difficult to switch this thinking style off.28 The following sstudent
comments verify this awareness:
To be able to separate your personal thoughts from your professional thoughts is a hurdle I would like
to overcome. (Student 14)
I have learnt through this subject that the approaches taken throughout legal conflict are very different
depending on which “hat” people wear. (Student 15)
LAW2206 requires students to focus on this difference through naming, identifying and reflecting
on the different approaches and the values underpinning each. The course assists students to identify
their values and how they impact on their thinking and behaviour and how this in turn impacts on their
work. It builds on a first year course students have completed in which the students engage with an
in-depth assessment of their own values.29 Students discuss the very different value system of
mediation identified by Menkel-Meadow30 including:
• Fairness • Trustworthiness
• Party consent • Social justice
• Impartiality • Non-violence
• Democratic participation • Orientation to jointness
• Empowerment • Do no harm
• Responsive and particularised solutions that • Problem-solving
do no harm
They consider and discuss these values against the values required of a lawyer. This knowledge helps
students consciously identify which value set they are experiencing in the different realities. This
awareness of other thinking styles becomes very apparent to students in their role-plays:
I found that as the mediator I was frustrated that the two parties kept disagreeing when a logical result
was in front of them. I would often liked to take a role of a judge when both parties are in stalemate to
decide after hearing both stories on the agreement they shall have. (Student 16)
As a person who has a very cut and dry approach to a dispute this subject has been quite challenging. I
found it very difficult merely to facilitate a conversation between two parties as I wanted to just
constantly interject and make a decision. (Student 17)
Although, it can be a VERY frustrating process when you get impatient and tend to want to take over
the process by making it focus on your observations. I cannot stress any more how much it has helped
even in my everyday life. (Student 18)
An ADR course provides the possibility for students to use a more creative thinking style which
will provide greater opportunities and some balance in a law curriculum that otherwise favours a
logical vertical thinking process. Students clearly found this a refreshing approach and identified the
difference from their other courses. This level of meta-cognitive perception assists the student in
developing greater self-awareness and observation of behaviours that can aid their self-management.
27
Kelk et al, n 25, pp 46-47: “Awareness of one’s mental style is the first step towards taking control of one’s method of
thinking, and of adapting one’s mental style to different situations … It is an important personal skill to distinguish between such
different styles of thinking and behaviour, and to be able to use them in different life contexts.”
28
Daicoff S, “Lawyer Be Thyself: An Empirical Investigation of the Relationship Between the Ethic of Care, the Feeling
Decision-making Preference, and Lawyer Well-being” (2008/2009) 16 Virginia Journal Of Social Policy & Law 87 at 131
29
LAW1202, Law in Context, has a values assessment tool, based on Rokeach M, The Nature of Human Values (Free Press,
1973), which students are encouraged to use.
30
Menkel-Meadow C, “Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of
Lawyers’ Responsibilities” (1997) 38 South Texas Law Review 407 at 415-420.
(2012) 23 ADRJ 204 211
Collins
SELF-MANAGEMENT
TLO 631 is centred on the literature regarding student’s health and well-being in law schools. The
literature supports an engaged, socially connected learning environment that fosters self-management
through empowerment, self-awareness and self-reflection.32 Much of the discussion above has been
driven by the focus in LAW2206 on students developing self-awareness through observation, practice
and understanding of communication at deep levels, from their own personality typing to awareness of
non-verbal, and cross cultural communication techniques:
I personally enjoyed the Meyers Briggs personality test. I thought that this was a lot of fun and taught
me a lot about myself and everybody I had do it. (Student 5)
Just understanding the importance of dealing with conflict as it arises, and focusing on being a
collaborator or a problem solver instead of a peace keeper has reassured me why it is good to speak up
and deal with conflict. (Student 35)
Directly attacking a problem or a person was not the Buddhist way … He always felt that the way she
spoke to him was wrong and un-Australian … but the supervisor could see nothing wrong with her
communication. (Student 36)
To ignore the issue or sweep it under the rug … is an unhealthy way to deal with conflict. It is
something that I need to change for my own benefit. (Student 31)
The delivery mode of the course is aimed to give maximum flexibility for students to both
empower them and support their self-management. They have choice as to their attendance at
intensives and the assessment topics to enable them to develop their own interests, but they are also
assisted in their self-management through the requirement of making regular on-line posts and
completing online multiple choice tests.
This TLO encourages students to adopt supportive peer learning and appreciate feedback through
reflection. This is facilitated through the learning and assessment approach in LAW2206. The online
discussions support a collaborative learning environment with the ability to give and receive feedback
through the facilitator’s response to posts and the student’s engagement with each other’s
discussions.33 Students are given instant feedback in their role-plays both from the facilitator’s and the
students debriefing in which they share their feelings of the experience in a friendly and supportive
manner as they rotate through the roles of party, mediator and partisan adviser getting to “feel” the
consequences of their actions in the alternating roles. Students find the learning authentic:
I think the best part about this course, as compared to other courses … is the discussion seemed “real
world” and I believe the skills and the way of thinking … are very transferable to other situations as a
lawyer. (Student 19)
I very strongly agree … that real world application of the law is very different to the textbook approach
which is something that is lacking in our formal education of the law … this is the most practical course
that I have undertaken to date … the intensives departed from the textbook approach and have
attempted to give us as much practical knowledge as possible. (Student 31)
I’d love to see our other courses employ these sorts of practical course work as this has by far been the
most “real life” experience I’ve had in my degree so far. (Student 32)
31
Marychurch J, Good Practice Guide (Bachelor of Laws) Self-Management (Threshold Learning Outcome 6) (ALTC, 2011).
32
See further Soller A, “Supporting Social Interaction in an Intelligent Collaborative Learning System” (2001) 12 International
Journal of Artificial Intelligence in Education 40; Hinett K, “Developing Reflective Practice in Legal Education” (UK Centre
for Legal Education, 2002).
33
See Doolan M, Hilliard A and Thornton H, “Collaborative Learning: Using Technology for Fostering those Valued Practices
Inherent in Constructive Environments in Traditional Education” (2006) 3(2) Journal for the Enhancement of Learning and
Teaching 7; Palloff R and Pratt K, Building Learning Communities in Cyberspace (Josey-Bass, 1999); Rovai A, “Building Sense
of Community at a Distance” (2002) 3(1) International Review of Research in Open and Distance Learning 1.
212 (2012) 23 ADRJ 204
Law students’ aversion to team work34 and social isolation issues are overcome through their
role-plays, undertaken in teams at the intensives and the social interaction opportunity they gain
through spending an extended two days together at each intensive. This mode of delivery demands
connectedness, it does not permit one to come and go in a lecture theatre without speaking to another
student.35
Opportunity for friendships was also extended through students being encouraged to attend their
non-home campus to meet other students:
I have enjoyed this course of study – very practical, engaging and allowed a chance (or 3) for an
external student to link in with other students and the lecturer. (Student 30)
As an external student I really enjoyed the experience of the intensives. (Student 13)
Students are encouraged to discuss, explore and reflect on conflict by dissecting its causes based
on conflict theory, which breaks down the conflict into comprehensible chunks. They gain
empowerment through appreciation that conflict need not be a negative experience; rather they learn it
is a natural aspect of human existence that can have positive outcomes, not just for a winner:
I think I learnt the most in relation to conflict diagnosis being the key to finding an appropriate
mechanism to settle the dispute, and how integral to discussions choosing an appropriate
communication technique is. In actual fact I have designed a new training schedule for the legal team I
work in and it includes how to diagnose conflict appropriately and recognise the barriers to resolution.
(Student 33)
I could spend an entire day describing the important things I’ve learnt in this course. [It] has really
allowed me to alter my thinking with regards to resolving disputes. I felt … assured … that it would be
something I could succeed at in the future … I have always been very one sided. I feel that now I need
to develop my impartiality skills in order to become a more skilled lawyer who could potentially
participate in mediation either as a mediator or as a partisan advisor … I’ve come to learn that winning
isn’t everything and that issues can actually be negotiated in a sense that allows both parties to “win”.
I now think I would make a better negotiator and lawyer having completed this course. (Student 34)
It was really good to have the opportunity to take the time to really examine conflict, what it really is,
what causes it and how best to deal with the varying types … I particularly like the way that the …
pieces of assessment were able to be combined to gain an in-depth understanding. (Student 24)
Emotions are studied and acknowledged in mediator training so they can be appropriately
addressed. ADR is about giving parties control over outcomes and empowering them by giving them
voice. This has direct parallels for the law student’s own empowerment because the teaching approach
is a facilitated style so students are given voice and supported in expressing their views online and in
the face-to-face intensive.36 The facilitative style of teaching in which specialist professionals are
welcomed into the teaching environment to work with the course facilitator, models for students a
collaborative approach. This is a self-empowering experience for students,37 which assists with
recognising emotions and gaining skills to address the emotional aspects in ways that the law tends to
34
Tani M and Vines P, (2009) “Law Students’ Attitudes to Education: Pointers to Depression in the Legal Academy and the
Profession?” 19(1) Legal Education Review 3 at 3: “Law students reported different reasons for their choice of course, seemed
disproportionately concerned about their grades, less interested in teamwork, and had different ideas about employers’
preferences for graduates when compared with students from other disciplines.”.
35
Tani and Vines, n 34 at 21: “[S]ocial relationships tend to follow a networking approach based on status and future perceived
benefits to the student. Law students also appear more concerned than other students about developing a network of friends that
will be useful for their professional career … It is also of interest to note that law students were significantly less willing than
other students to be involved in group work and group assessment.” See also Kelk et al, n 25, p 47: “[S]olutions to these
problems … [are] facilitated by approaching … issues on a group or institutional basis, encouraging connectedness rather than
isolation, autonomy rather than individualism.”
36
See further Bulger M, Mayer RE and Almeroth KC, Engaged by Design: Using Simulations to Promote Active Learning,
Paper presented at the World Conference on Educational Multimedia, Hypermedia and Telecommunications (EDMEDIA)
(Chesapeake, VA, 2006); Brill JM and Park Y, “Facilitating Engaged Learning in the Interaction Age: Taking a
Pedagogically-disciplined Approach to Innovation with Emergent Technologies” (2008) 20(1) International Journal of Teaching
and Learning in Higher Education 70.
37
See, for example, Daicoff, n 28 at 133.
(2012) 23 ADRJ 204 213
Collins
like to avoid:
We are told as law students to avoid practising in family law; “Don’t go there; it’s too messy and
emotional. Why waste your time with petty family disputes when you can be working on big
commercial cases and getting paid more?” … I have learnt that resolving disputes through mediation
methods is a noble and righteous vocation. (Student 1)
The course allowed me to think about a great deal of aspects that I had never taken the time to consider.
For example the power imbalance between disputants … as well as the emotional aspects … I think
dealing with emotional aspects of conflict may be one of the most difficult hurdles to overcome.
(Student 23)
The opportunity is given in LAW2206 for students to develop good habits learnt in a “safe
environment” before having to use them in the workplace through the experiential learning style. Their
role-plays are not assessed so they can feel supported in the learning process by experts who are
present to assist, not judge, them. Students subsequently write a paper on their experience linking this
to the theory in order to reflect on what has and has not worked. This exercise impresses on the
student the reflective process by which they: (1) have the experience, (2) reflect, and (3) make the
connection with the theory. The significance of this learning process is confirmed by neuroscience
which supports the benefits of experiential learning. Neuroscience can provide a great deal of
assistance for lawyers, when communication and interpersonal skills underlie the majority of their
work.38 For mediators assisting parties to communicate and manage their disputes this knowledge is
essential:
[W]hen the action that resolves the emotional stress is a habitual action rather than a “first time” action,
there is greater involvement of the basal ganglia, and therefore, the … “containment” of the emotion is
more effective … To practice a new action … can make [one] feel “more sure of himself” when
anticipating the circumstances that create stress.39
Students develop skills which can be used in the professional and personal aspects of their lives,
and have reflected on the immediate personal benefits they have gained from ADR training as the
following indicates:
Not only has this course increased my knowledge and appreciation for conflict and resolution processes,
it has also changed me personally. I have noticed that my dealings with conflict in everyday life have
changed … I feel that I have been more attentive to what the other person is saying. I now give them a
chance to express their emotions which allows me to greater appreciate their opinion. I find that doing
this resolves the issue quickly and amicably for the benefit of both [and] has definitely changed my
social interactions and my way of dealing with conflict. (Student 25)
Teaching ADR provides students with an opportunity for personal awareness and growth by
developing self reflective approaches as encouraged by the assessment. This can only broaden the
depth of their educational experience and improve their graduate qualities. In this sense teaching ADR
has much to offer the sixth TLO of self-management skills.
CONCLUSION
Students respond positively to feeling they can assist a client to a win/win outcome. That is not to say
that litigation may not sometimes be the best resolution method. In LAW2206 this is an important part
of the learning. By diagnosing the conflict, students are better equipped to choose the best approach.
This article has focused on discussion of three of the six TLOs and the contribution teaching ADR can
make to these learning outcomes. TLO5 demands a wider approach to communication skills, beyond
legal writing, negotiation and advocacy. The communication and conflict theory taught in LAW2206
provides this. The ability to dissect conflict and manage it using techniques taught in ADR provides a
38
Collins, n 18; See also Ashby FG, Isen AM and Turken AU, “A Neuropsychological Theory of Positive Affect and its
Influence on Cognition” (1999) 106(3) Psychological Review 529.
39
Liss J, The Neurophysiology of the Emotions and of Consciousness – Recent Research: Edelman, Schore, Van Kolk, Gellhorn,
Laborit, Quarto & Renaud, Shapiro (undated). See further Ochsner KN et al, “Reflecting upon Feelings: An fMRI Study of
Neural Systems Supporting the Attribution of Emotion to Self and Other” (2004) 16(10) Journal of Cognitive Neuroscience
1746.
214 (2012) 23 ADRJ 204
different focus from vertical legal reasoning, supporting the creative thinking requirement of TLO3.
Finally, TLO6 is supported through the reflective approaches to assessment and the development of
personal self-awareness as a result of the theories taught in LAW2206, leading to greater
empowerment of the student.
ADR has a much to offer the legal academy. It provides alternatives to the adversarial approach
for students struggling with values conflicts and is likely to provide skills lawyers will need in the
changing legal landscape. The cost of public justice demands alternatives and these are being adopted
for all the reasons advocated by ADR practitioners. On this basis ADR should not be treated as the
“Cinderella” of the legal world and the students voice should be heard:
I honestly viewed ADR as less of a profession than other areas of the legal arena, and that has definitely
changed. (Student 19)
[I]t has been a consciousness-raising experience, refining my thoughts and approaches to an extreme
degree. There’s a lot to reflect upon. (Student 18)
It has been a good semester and this class has totally revolutionised my perceptions. (Student 27)
(2012) 23 ADRJ 204 215
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