The teaching of alternative dispute resolution in selected Australian law schools: towards second generation practice and pedagogy
Creators: name: Douglas, Kathy
Publisher: name: RMIT University
Year: 2024

description: Alternative dispute resolution (ADR) theory and practice can contribute to the development of non-adversarial practice in law; an approach that privileges non adversarial options over litigation and better addresses clients’ needs including the emotional concerns inherent in many legal disputes and issues of power and culture in conflict resolution. Additionally, emergent theory in negotiation and mediation, sometimes known as second generation practice and pedagogy, contends that these processes can lead to conflict transformation between parties, where there is fundamental change in the ways that parties perceive each other, the conflict and the larger societal issues that pertain to the dispute. Second generation practice differs from first generation paradigms in negotiation and mediation, because it is interactional rather than transactional and instrumental, relational rather than individualistic and does not privilege the rational over emotional concerns in conflict.<br><br>Despite the potential of ADR to contribute in a positive manner to law, lawyers and parties a number of initiatives in ADR have been subverted by the traditional adversarial mindset of many lawyers. The rise of evaluative mediation, where parties are advised about the likely court outcomes of a dispute and sometimes pressured to settle, means that in the court-connected context the potential of alternative processes can be compromised. Evaluative mediation undermines party self-determination and the experience of procedural justice, whereby parties experience benefits from a third party hearing the story of their conflict.<br><br>Legal education is a key site for the construction of legal practice. ADR in legal education is important to research in order to understand the ways that this area might better contribute to shaping the lawyers of the future. The teaching of ADR in legal education can contribute to law students developing a professional identity that privileges non-adversarial practice, and understanding the full potential of negotiation and mediation. This thesis explored the content and pedagogies used by law teachers in teaching the discipline area of ADR. The research was primarily constructivist and considered the teaching of ADR in two states in Australia, Victoria and Queensland. The methodology adopted included both qualitative and quantitative data through interviewing or surveying twenty nine ADR teachers and the content analysis of thirteen ‘main’ course guides dealing with the area of ADR. The data was gathered in late 2007 and 2008. This thesis uses various theoretical lenses to analyse the data, including non-adversarialism, particularly the works of Julie Macfarlane and Nickolas James. The thesis explored the complex forces affecting the place of ADR in legal education and made a number of findings, including the need to formalise a community of practice of ADR teachers in Australia in order to promote the teaching of second generation practice and pedagogy in negotiation and mediation. This community of practice is also necessary to lobby for appropriate funding of ADR pedagogy, particularly the funding of role-plays.<br>