T EACHING D ISPUTE R ESOLUTION E THICS IN THE L AW C URRICULUM Rachael Field – Associate Professor, Queensland University of Technology James Duffy – Lecturer, Queensland University of Technology 1

I NTRODUCTION Our key points: DR should be a core compulsory subject in the law degree, and should include the teaching of mediation ethics. DR is central to current legal practice, so DR should be taught to law students to prepare them for that practice. DR is most frequently offered as a stand-alone elective, late in the law degree. Ethics for legal practitioners in DR contexts are not often covered in professional responsibility subjects. Many students graduate with a law degree but without a knowledge of the ethical rules, and without the skill set to make ethical decisions, in relation to DR contexts 2

10 Reasons why ADR must be a mandatory subject in the law degree 3

R EASON 1 Current teaching does not reflect legal practice Litigation is privileged as the predominant way to resolve disputes Irony: The amount of time we spend analysing judicial decisions is almost inversely proportional to the number of disputes that are actually litigated (Eric Green, 1984) 5 percent of commenced civil actions actually make it to trial. 4

R EASON 2 Participation in DR processes are mandatory under certain legislation Judge can direct parties to DR process with their consent Judge can compel parties to engage in DR without their consent (eg Civil Proceedings Act 2011 (Qld) s 44) Parties may be required to engage in an DR process before filing a claim with the courts (eg Civil Dispute Resolution Act 2011 (Cth) sections 3 and 4 – Genuine steps ) 5

R EASON 3 Legal practitioners have a duty to advise clients about DR processes Solicitors: Australian Solicitors Conduct Rules rule 7.2. “A solicitor must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation.” Barristers: See the Barristers’ Rules in each state If you have not been exposed to ADR instruction, you can’t meaningfully discharge this duty 6

R EASON 4 DR instruction allows students to appreciate the importance of emotion (and emotional intelligence) in the resolution of disputes The lawyering role is people intensive and people have emotions Do the rational, logical, analytical, critical, pessimistic, risk adverse traits that law school rewards fully equip students to deal with client emotion? Role plays and working with emotion 7

R EASON 5 Lawyers need to understand about the nature and theory of conflict Helping clients with a conflict/dispute goes to the heart of the lawyer’s role Knowledge about conflict theory can help prevent disputes from arising and can also help to manage/resolve a conflict Conflict is multi-faceted and subjectively perceived and may not be resolved by focussing upon legal rights and entitlements 8

R EASON 6 Teaching DR supports law student psychological well-being A move away from adversarialism A move away from zero-sum games Putting the people back into the story Increased student engagement, interaction with peers and sense of belonging at law school 9

R EASON 7 It is impossible to satisfy the Threshold Learning Outcomes for Law (TLOs) without exposing students to DR instruction knowledge (TLO 1) ethics and professional responsibility (TLO 2) thinking skills (TLO 3) research skills (TLO 4) communication and collaboration (TLO 5) self-management (TLO 6) 10

R EASON 8 DR instruction can help students to develop a positive professional identity Professional identity = how people see themselves in a professional role ADR’s focus on consensus building, negotiation and mutually beneficial outcomes, can provide comfort to students who do not identify with the adversarial nature of litigation “For many lawyers, the ability to practice without having to adopt the aggressive persona of the litigator is a liberating experience, as no doubt there is a vast number of lawyers whose self image as a professional does not follow the traditional adversarial model. Non-adversarial practices allow lawyers to cast off the shackles of adversarial behavior, providing them with an opportunity to reinvent themselves (and their image) as more caring and helpful” 11

R EASON 9 NADRAC supports the mandatory inclusion of DR in the law curriculum NADRAC’s policy aims in the legal sphere are important and worthwhile (eg creation of a dispute resolution culture) NADRAC needs the help of law faculties to help promote and achieve these policy aims 12

R EASON 10 Law students are demanding DR knowledge and skills The law curriculum should not be driven by student demand but We should not underestimate subjects that law students value because they are viewed as being relevant to future legal practice At the QUT law school, the elective LWB150 – Lawyering and Dispute Resolution had the highest student enrolment of any elective in the law degree for the three years that it ran. 13

Queensland University of Technology CRICOS No J LLB Lecture 12 Ethics and Dispute Resolution Rachael Field James Duffy

CRICOS No J a university for the world real R Key Learning Outcomes To develop an understanding of: Ethics and ethical dilemmas in dispute resolution. The difference between ethical rules and making an ethical judgement. The importance of a functioning ethical compass for a positive professional identity for legal professionals working in dispute resolution contexts.

CRICOS No J a university for the world real R Ethical decision-making is fundamentally important to lawyering. Being able to make ethical decisions as a lawyer requires more than just a knowledge of the rules of ethics. The rules are sometimes ambiguous, or simply don’t clearly apply to a situation. A knowledge of the rules must be supported by a personal ethical framework; a professional moral compass.

CRICOS No J a university for the world real R Why are legal ethics so important? Ethics are a bedrock notion for lawyering. Ethical practice is the foundation of legal professional practice because ‘lawyers occupy a critical and sensitive place in the functioning of a society governed by the rule of law’ (QLS). Lawyers owe their highest ethical duty to the Court and must be ‘fit and proper’ persons to hold that office. Lawyers’ ethics impact on public confidence in the profession and in the administration of justice.

CRICOS No J a university for the world real R Ethics and a positive professional identity A professional identity is a complex combination of a range of expectations that we have of ourselves, and behaviours that we adopt to meet those expectations, when we think about ourselves as a professional person. Ethics, and our role as lawyers as ethical decision-makers, are a part of the ‘constellation of attributes, beliefs, values, motives and experiences’ by which we define ourselves in our professional lives.