Law Schools Are Awakening to the Need to Teach ADR
Mary Welch | December 18, 2014
In a report called "The Vanishing Trial," The American Bar Association struck a nerve when it asked if cases that went before a judge or jury were on the endangered list.
The 2004 report revealed that the federal courts tried fewer cases in 2002 than in 1962, despite a fivefold increase in the number of civil filings and more than doubling of criminal filings during the same periods. Although the report acknowledged that similar data on the state level were not as well documented, the available statistics also indicated that trials were indeed diminishing.
The Florida Office of the State Courts Administrator said there were 870,352 civil cases disposed (not including probate, family court or civil traffic infraction cases) from July 2010 to June 2011. Of those, 1,049 were disposed by a jury trial and another 4,348 by a jury or bench trial. That means only 0.6 percent of the filings made it to trial. Earlier reports estimate the rate as low as 0.2 percent.
In Georgia, some estimates show that at least 90 percent of all civil cases settle before reaching a judge or jury.
In 2011, a forum for state appellate court judges by the Roscoe Pound Civil Justice Institute went so far as to assert that civil courts were on the "road to extinction."
"We, meaning the law schools in this country, are training all these students to go in front of a judge or jury and less than 0.2 percent will ever go in front of a jury. They're going to see mediations," says Robin Davis, director of the Institute for Dispute Resolution at the University of Florida Levin College of Law. "Law schools need to emphasize this shift and reprogram students as to what a lawyer today is and that is being more of a counselor than an adversary. Even old-school professors are recognizing that ADR is here and that more resources need to go toward experiential learning.
The American Bar Association and law schools across the country continue navigating a legal culture that is shifting from adversarial to conciliatory, from trial to mediation and from book learning to practical applications.
Many law schools offer courses in alternative dispute resolution, but the approaches vary. At some law schools, it's up to individual instructors to infuse ADR into their classes; in others, students can graduate with a certificate in mediation or even a master's degree in mediation along with a law degree.
California was one of the first states to embrace ADR, both in practice and academically.
"Southern California became an early epicenter of mediation and Pepperdine University School of Law was at the tip of the spear in terms of change when it came to mediations," says Thomas J. Stipanowich, a professor of law and academic director for the Straus Institute for Dispute Resolution at Pepperdine. "But the fact is that some law school faculties aren't always looking forward in the practical sense. There is a lot of reflection on the same old things and a kind of adherence to certain values that they've held on to and cherished.”
Stipanowich says there is an "oil and water" mentality in law schools about how conflict management is broadly stated and how it ties in with the overall curriculum. "The fact is that insights [from ADR] really and ideally should be intertwined with courses like contracts, torts, civil procedure, etc. Any course you name would or could serve as a platform for an exercise for effective conflict management." This "divided mentality, schism" still affects many law schools and faculties, he says.
Pepperdine law students concurrently can earn a Juris Doctor degree and a masters of dispute resolution as 14 units from the law program that also apply toward the 32 units necessary for a master's degree. Students need only 18 more units to earn the second degree, and by taking summer classes, can earn both degrees in three years.
"The program has grown and evolved and it is now an academic program, not just academic skills," Stipanowich says. "Some law facilities look down their noses on what we're doing, but it's as academically worthy as anything else. It's all intertwined with the general curriculum and if you don't understand the other [ADR] mentality, then it gets in the way of you advancing the ball."
Another early adopter is the Center for Negotiation & Justice at the William Mitchell College of Law in St. Paul, Minn., where 15 students participate in a semester-long, project-based dispute resolution procedure. Students represent nonprofit clients with real problems and professors provide oversight. The course gives students the opportunity to design the strategy collectively and create a customized plan to handle the problem.
Jim Hilbert, executive director for the center, says law schools traditionally lag behind what the actual practice requires. "The use of technology is classic example. We're just now seeing a little about e-discovery in schools," he says. "It's been the culture of legal education to be at least a generation behind what the actual practice of law requires.”
When Douglas H. Yarn, professor of law and executive director of the Consortium on Negotiation and Conflict Resolution at the Georgia State University College of Law, started teaching law in the late 1980s, there was hardly anyone teaching ADR in the state. At one point he was simultaneously an adjunct professor at Emory, the University of Georgia and Georgia State. "It shows the value the traditional legal education was giving to ADR at the time," he says. "You gave the course to an adjunct professor teaching what was considered a nontheoretical skill course. There's still that attitude today.”
Yarn says few law schools have taken a comprehensive strategic approach and "really gone the full distance in terms of figuring it all out. All law schools are struggling to figure out how to present a coherent curriculum [with ADR] that has a clear set of learning objectives." Ironically, ADR as a practice has been "well integrated over the past 20 years into the legal culture of Georgia because the courts have institutionalized it," Yarn says.
Southeastern law schools including Emory, Florida State and Georgia State are infusing the skills needed in ADR into the traditional classes such as torts, civil procedure and contracts as negotiation exercises, especially in the first year. Simulation-based courses may be framed in negotiation theory coursework in which ADR plays a role. ADR courses also are offered as electives.
Paul J. Zwier, director of Advocacy Skills Program as well as the director of Emory University's Program for International Advocacy and Dispute Resolution, says Emory students learn problem-solving mediation and adversarial negotiations as a way to look at different approaches, he says. "Then the students look at how the court is likely to see it [litigation] versus mediation, which is problem solving. It facilitates the conversation.”
ADR electives aren't mandated at Emory but are highly recommended for those leaning toward a litigation career or family, international or environmental law. "We're also seeing those on a more transactional track taking ADR classes to both inform contract drafting and ways to manage disputes in transactions," he says
Zwier says Emory's overall attitude toward ADR is that the skills learned are just as relevant in more traditional adversarial settings as in the conciliatory rooms of mediation. "Lawyers need to develop skill sets such as empathic listening and problem solving when in ADR but today's litigators need those skills in order to make a good, classic legal argument—either to opposing counsel or a judge," he said. "I really do think that part of the ideal lawyer is to be as much of a peacemaker as well as an advocate.”
Emory students often work with public interest groups that do mediation, including the Carter Center. "We have classes where students role-model simulating disputes and we encourage our students to do pro bono work in mediation." Zwier says. "We need more experiences like that for our students. We're a bit weak on that."
Helping students find such opportunities is Emory's Alternative Dispute Resolution Law Society that offers competitions, guest lectures and group meetings to encourage students to become invested in ADR.
GSU's Atlanta International Arbitration and Mediation Center opens next year. The school integrates ADR lessons into general freshman classes, similar to Emory. By the second and third years, students are doing a lot of simulations that highlight ADR skills while the litigation trial practice course has a negotiation course with an ADR component to it. Beyond that, any ADR instruction is elective.
"I don't teach mediation so these kids can become mediators," says Yarn. "I teach mediation so that the students can be a better advocate, better negotiator, a better listener. It's just a way to deliver the skill set. If I had my druthers, and we're working toward it, this [ADR] will eventually become a sort of integrated, comprehensive curriculum that delivers a full range of interlocking skill sets."
Yarn says that students are hungry for these classes. "We've had many graduates come back and say it was the most valuable courses they ever took because they use those skills every day.”
Tahirih Lee, associate professor of law at Florida State University College of Law, says there is an "extreme tension" over ADR because you "talk like real people. It's a mental shift, but … both approaches can be melded together and used."
FSU has seen a big upsurge in student interest in ADR courses because they "think it will translate quicker to getting them on the ground running when they are working in law firms," she says.
The University of Florida's Institute for Dispute Resolution was formed after state legislators gave judges broad authority to order mediation in civil lawsuits. Students can receive training as a county mediator. The university has 10 courses involving negotiation, mediation and ADR.
"They all have different titles but we hope that students elect them because they are skills classes and it's really for any area of the law," says Davis. "We do make it clear that some courses are taught from the attorney's point of view, some from the mediator or advocator's view and the mediators.”
Law schools are seeing a strong trend toward experiential learning and ADR is part of that trend, Davis says. "Law schools will still teach constitutional law, tort, property. We're not throwing out the baby with the bath water. It's just a better balance and by taking these ADR courses, I really do believe you become a better lawyer."