Our series of posts from Chapter 12 of Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) is almost at an end. This is our penultimate post:
The institutionalisation of mediation (discussed in Chapter 8 of Mediation in Australia is so central to the future of legal practice that (as we argued at some length in our other work Australian Dispute Resolution: Law and Practice (LexisNexis, 2017)) ‘it should also be central to every law graduate’s experience of legal education’. The recent nod to this position is the inclusion of DR in the core compulsory subject ‘Civil Procedure’ in the Priestley 11 subjects (the core compulsory subjects required for eligibility for admission to legal practice in Australia). Some in the mediation community, including some of our most esteemed colleagues in the ADR Research Network, see this as a positive and sufficient development. We agree that it is a positive development. However, we respectfully consider the approach to be insufficient.
In 2012 a national study by NADRAC found that only eight law schools at that time included in their curriculum a mandatory subject in which 50 per cent or more of the teaching focused on DR. The NADRAC Report made the point that ‘the amount of ADR teaching that currently occurs in the majority of Australian law schools is not sufficient in light of the increasing role that lawyers will play in advising clients about and assisting them in ADR processes’. At the time of writing, NADRAC’s successor — the Australian Dispute Resolution Advisory Council — is conducting a follow-up project led by Dr Kathy Douglas of RMIT. This new project will provide current, accurate and up-to-date nation-wide data about the presence of DR subjects in Australian law schools.
In our view, until that data reflects that every law school graduate has experienced a dedicated DR subject in their degree (including content on mediation theory and practice), the current Australian legal education system will be failing to adequately prepare law students to enter legal practice with the necessary knowledge, skills, attitudes and ethical attributes to enable them to succeed and thrive within and outside the profession in the 21st century. As long as DR is taught to future lawyers predominantly through elective subjects, it will be only those law graduates who have the acumen to choose DR as an elective who graduate with foundational levels of DR competence. The legal academy must support the work-readiness and future employability of students through DR education, if the legal profession is to have the capacity to manage positively the diverse challenges it faces into the future.
We welcome your comments and responses to these thoughts.
Laurence Boulle and Rachael Field
Another excellent post. In light of the requirements of State and Territory Uniform Civil Proceedures legislation and, at Federal level the Civil Dispute Reaolution and Family Law Act obligations to engage with ADR (let alone the clear precedents established by authorities such as Hawkesbury Community radio & Bryant as to the cost penalties and consequences of non-compliance) it is difficult to understand why there would be reluctance to engage (as educators or practitioners) with ADR. Perhaps, as reflected in earlier posts, there is a lack of leadership from the Bench and more senior elements of the profession who’s understanding of ADR is imperfect and incomplete
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Thank you for this comment Judge. I agree we can step up leadership on all legal fronts – in practice, at the Bar, in legal education and from the Bench. Rachael
Terrific initiative and worth supporting. So vital that all upcoming lawyers complete a dedicated DR subject as part of their degree and are ready for the contexts of their practice.
Thank you Judge Harman, very cogent comments. Although I have a conflict in relation to the National Mediation Conference in Canberra next year I think it would be edifying for all elements of the legal community to swap ideas on your and Rachael’s ideas. DR has many applications, including in and around the courts.