AustLII Home | Databases | WorldLII | Search | Feedback

Legal Education Digest

Legal Education Digest
You are here:  AustLII >> Databases >> Legal Education Digest >> 2008 >> [2008] LegEdDig 19

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Fisher, T; Gutman, J; Martens, E --- "Why Teach ADR to Law Students? Part 2: An Empirical Survey" [2008] LegEdDig 19; (2008) 16(2) Legal Education Digest 14


Why teach ADR to law students? Part 2: an empirical survey

T Fisher, J Gutman & E Martens

17 Legal Educ Rev (1&2), 2007, pp 67–101

Since 2005, the unit ‘Dispute Resolution’ (DRE) has been taught at La Trobe Law as a compulsory first-year law unit. The goal of the unit is to provide students with a theoretical and practical base for evaluating the dispute resolution processes existing in Australia, with an emphasis on those processes that pertain to legal practice, particularly mediation. Specifically, its objectives are: (1) To describe and examine the range of dispute resolution processes available in Australia including arbitration, conciliation, mediation and negotiation (2) To present a variety of skills required to assist in dispute resolution; (3) To provide students with an opportunity to practise these skills; (4) To encourage students to analyse critically a range of current issues related to dispute resolution processes, including power imbalances between disputants, rights vs. interest-based approaches, ‘bargaining in the shadow of the law’ and the regulation of third party facilitators; (5) To develop skills in dispute resolution, communication, research and analysis.

In 2005 the unit had a weekly two-hour lecture program, which focused on theoretical and empirical perspectives pertaining to the range of dispute resolution processes from adjudication to avoidance, but concentrating on mediation.

In addition to the lecture series, weekly seminars (with 20 students per seminar) of two hours duration were run. The aims of the seminar program were, first, to teach students communication and negotiation skills and second, once these basic skills were practiced, to enhance them by introducing students to a generic facilitative mediation process. Students were required to participate in role plays that allow them to experience a co-mediation model in practice, both as disputants and as mediators, and to develop and refine related micro skills.

Students were examined on their achievement of the objectives of the unit in several ways. In 2005 skills development was assessed by evaluation of an in vivo mediation role play (by the regular tutors and coaches experienced in the field) and by journal feedback, as well as by one section of the final written examination (totalling 35 per cent). Knowledge of theoretical and empirical material was tested by the more traditional modes of a research essay (35 per cent) and the bulk of the formal examination (30 per cent) at the end of the semester.

Whilst the teaching of most of the other law units in the curriculum is based on the adversarial model, ‘Dispute Resolution’ offers a student an opportunity to reflect on non-adversarial modes of conflict resolution.

The unit is not designed to promote ADR but to allow students to develop an appreciation of how ADR fits into the overall dispute resolution spectrum, emphasising the Australian context. Even though the study of mediation comprises the bulk of course content, ADR processes are not recommended to students as the best way to deal with conflict in all cases. Students thus are encouraged to analyse mediation critically and consider the appropriateness of various dispute management processes for specific contexts of legal disputing.

Furthermore, ‘Dispute Resolution’ is not taught in a vacuum at La Trobe Law. It is offered alongside ‘Legal Institutions and Methods’ in first semester of first-year law. Although reference is made to ADR in the unit, and students are exposed to teaching materials that consider the lawyer’s role as client advocate as well as an officer of the court, the primary focus of ‘Legal Institutions and Methods’ is to acquaint students with the primary sources of law within the context of the adversarial system based on adjudication of civil and criminal cases under the rule of law in open courts.

Our research seeks to assess changes, if any, to student attitudes (as opposed to knowledge and skills) towards the manner in which legal practitioners and the courts manage conflict brought by clients into the legal system. We sought to investigate what impact ‘Dispute Resolution’ may have had in modifying student perceptions of lawyers’ roles in helping clients manage disputes for which they had sought legal assistance.

At the first class students enrolled in ‘Dispute Resolution’ were asked for basic demographic information and answered questions about their educational choices and previous experience, if any, with the formal justice system. These questions were followed by 19 statements about ways in which lawyers and the Australian legal system manage disputes.

Most of the statements were generated by two of the researchers (who also are lecturers in the course). Others drew on questions used in the American study by Pipkin because we originally thought it might be useful to promote some degree of comparability with this study. The two sets of statements sought views both on the students’ perceptions of professional practice and what interventions they thought were best for clients in managing disputes.

Attitude change is not formally an aim of most university courses, as it is difficult to assess and raises ethical questions. Nevertheless, the affective domain is often involved in teaching, and a change in attitude is frequently part of an informal ‘hidden’ curriculum, whether formally acknowledged or not.

The process of attitude change in our context has been conceptualised in diverse ways. Perry describes a maturing of attitudes via several (nine) stages. Bloom represents the affective domain as structured in several hierarchically organised levels. Neither Perry nor Bloom focus much on how students move through the stages and what could assist them to do so. There are, however, several distinct theories described in the literature based on Miller and on Martin and Briggs: (1) Change occurs through behaviour and social learning (that is, learning new attitudes via observation of others’ behaviour, especially powerful models and positive reinforcement of desirable behaviour); (2) Change occurs through cognitive dissonance (attitude is challenged by an (external) need for new behaviour); (3) Change occurs through affective cognitive consistency (attitude changes as new information is processed); (4) Change occurs through change of self concept (a personal need for a different attitude as part of identity development).

Our study focuses on documenting and analysing attitude change as a side-effect of a formal university unit, rather than its goal. We therefore assume that the manner through which attitude change, if any, occurred in this case would be primarily the result of the presentation of new information and the acquisition of new skills, or a combination of the third and first theories mentioned above. In addition, we were also interested to learn if any changes in attitude varied in intensity according to students’ background and levels of familiarity with the legal system.

By collecting information on the backgrounds of students taking ‘Dispute Resolution’, we tried to learn whether such factors as age, gender, and previous experience with sectors of the legal and justice systems could be seen to impact upon student views towards managing conflict within the legal system.

As a more central component of the study, we wished to explore the extent to which student attitudes, as revealed in changes to the degree to which they supported or differed with the statements in the survey, altered from the beginning to the end of the semester. We hypothesised that there would be shifts towards collaborative (as opposed to adversarial) stances and towards advancing clients’ underlying interests (as opposed to their initial positions and legal entitlements).

The survey instrument administered to the ‘Dispute Resolution’ students contained two sections relevant to the current study. The first (Section A — background) focused on personal demographics and on students’ prior experience with the law and the formal justice system. The second (Section C – attitude) was intended to place student responses along an integrated spectrum as set out in Riskin’s ‘lawyers’ standard philosophical map’: adversarial vs. collaborative.

The first category is the broadest, probing for students’ perceptions about the importance of ADR in the general practice of law. This category included three statements: 3. Lawyers do not often have much occasion to use negotiation or mediation techniques and skills in legal practice. 4. A fundamental principle of Australian law is that the court system is the sole mode of determining disputes. 14. Australian lawyers practise in an adversarial system, hence negotiations and dealings between lawyers must be adversarial in nature.

A second category focused more explicitly on lawyer-client interaction, seeking to establish student views on the relative importance of disputant empowerment versus lawyer intervention in the process of problem solving. Three statements were designed to be relevant to this category: 7. When a person is involved in a dispute, the first thing s/he should do is see a lawyer. 11. A client in a legal dispute will more likely come out better if her/his lawyer empowers the client to make the important decisions concerning appropriate resolution strategies. 18. A client in a legal dispute will more likely come out better if her/his lawyer makes the important decisions concerning appropriate resolution strategies.

Category three specifically addressed student opinion of the value of rights-based versus interest- based approaches via the following statements: 1. When a person is involved in a dispute affecting their legal rights, s/he should always seek a determination of the dispute in a court. 2. Alternatives to litigation should never be used when the stakes are high. 8. Disputes should be determined only by courts as the community then knows what behaviours and standards the law will tolerate and what it will not accept.

The fourth category examined students’ perceptions of lawyers’ specific negotiating behaviour and values, particularly the extent to which collaboration with the other party in finding mutually satisfactory outcomes and enhancing relationship is sought. It included the following statements (asterisked statements taken from Pipkin’s study): 5. A lawyer’s primary obligation to clients is to help them improve their relationship with others.* 6. In negotiating, a lawyer should work to get an agreement where all sides believe they have gained something.* 12. A lawyer acting for a client in dispute should make a low initial offer of settlement to the other disputant’s lawyer so that settlement negotiations begin low and are therefore likely to end low. 16. In negotiating, a lawyer should work solely to get the best possible terms for her/his client.*

A final category, consisting of six statements, also focused on the role of lawyers, but on a more general plane. 9/15. A lawyer’s obligation to society is best met by ensuring that s/he assists in gaining what the client is entitled to under law. 10. To assist a client in dispute, a lawyer should first seek to determine what issues divide the parties by finding the law that strengthens their own client’s position.*

13. When taking instructions from a client about a dispute the most important matter for a lawyer to ascertain from the client is how much money the client will accept to settle the case. 17. The only thing that clients want their lawyers to do is to win their case. 19. A lawyer’s obligation to society is best met by providing services that satisfy her/his client’s needs. 20. To assist a client in dispute, a lawyer should fi rst seek to determine what issues divide the parties by looking for the needs and interests the disputing parties have in common.*

Although there were close to 300 students enrolled in the unit, for a variety of logistical and other reasons the two surveys, administered at the beginning and end of semester one 2005, resulted in only 156 viable cases (that is, students actually receiving, completing and returning both surveys with valid consent forms). The proportion of females to males was about 2:1. Nearly three-quarters of the students entered as undergraduates, the others having already completed a first degree or equivalent. About one third of the students had prior experience with the court system, and fewer than three-quarters had no personal or family background in the legal or law enforcement professions. Over 80 per cent were younger than 22 years old, with fewer than 10 per cent 30 or older. Most students were enrolled only in the Bachelor of Law, while the second largest group was undertaking a Law/Arts degree, and the remaining students were studying a variety of double degrees such as Law/Asian Studies and Law/Business.

Our analysis employed the Statistical Package for the Social Sciences (SPSS). SPSS generated frequency distributions for all subgroups on gender, age, and background, and descriptive statistics (means and standard deviations) for all items, each group and each test (Pre-test = T1 and Post-test

= T2). Analyses explored differences in attitudes towards legal practice in terms of gender, age, and various other background indicators. Means and standard deviations in attitudes for subgroups were examined, and one-way analyses of variance were conducted to determine whether subgroup differences were statistically significant (p<0.05). Change in attitudes over time, also in terms of background indicators, were then examined by comparing mean scores at T1 and T2 and conducting repeated measures tests to determine the significance of differences.

Within the data for each test, we compared results between male and female students, among different age and educational status groups, between groups with and without court experience and those with and without family background in the legal system. We then checked for change by running comparisons (General Linear Model) between these: T1 and T2. All comparisons were checked for significance (p<.05).

The second section of the instrument was designed to measure change, if any, in student attitudes towards various aspects of the practices in the legal system. Responses about attitudes towards lawyering and dispute resolution ranged from 1.63 to 3.22 on a scale of 1.00 to 4.00. The statement with the highest mean score (statement 20) prompts a reaction about the extent to which a lawyer should first focus on the common interests of the parties involved (rather than focusing solely on their client’s own legal position): students tended to strongly agree with this statement. The statement receiving the lowest mean response score (statement 3) states that lawyers have infrequent opportunity to use negotiation or mediation techniques: students tended to strongly disagree with this statement. There was little or no change to these views between T1 and T2. The descriptions of our results have been gathered into three groups: statistically significant changes, other changes, and little or no change. Only the first group will be discussed.

Category one probed for students’ perceptions about the importance of ADR in the practice of law. Statistically significant change occurred with respect to statement 14 at the end of the semester significantly fewer students agreed that ‘Australian lawyers practise in an adversarial system, hence negotiations and dealings between lawyers must be adversarial in nature’ than had at the beginning. Thus, there was a significant movement away from the view that lawyers’ negotiations must be adversarial, with the mean response moving almost half a step (that is, 0.43) from ‘strongly disagree’ to ‘disagree’, the greatest change in the entire data set.

A second category sought to establish student views on the relative importance of disputant empowerment versus lawyer intervention. Our findings indicate that, compared to the beginning of the semester, at its end significantly fewer respondents agreed with statement 18. ‘A client in a legal dispute will more likely come out better if her/his lawyer makes the important decisions concerning appropriate resolution strategies’ but more agreed with statement 7. ‘When a person is involved in a dispute, the first thing s/he should do is see a lawyer.

Data from statement 18 indicate a shift away from lawyer intervention to client empowerment. Responses to statement 7, however, apparently show movement along the spectrum in the reverse direction of lawyer intervention, the sole example in this study. However, in retrospect, the statement is not well formed. First, it actually contains two points, one about timing (‘the first thing’) and one about the importance of obtaining legal advice ‘see a lawyer’). Moreover, one may consult a lawyer about a legal matter to gain a clearer understanding of entitlement but still decline legal intervention or follow a litigation pathway. In addition there is nothing in the content of ‘Dispute Resolution’ that advises students not to consult a lawyer when having legal disputes. In fact, materials in lectures and reading suggest that to understand the range and consequences of possible options for dealing with a dispute, it is important to understand one’s legal rights and entitlements, even though they may be trumped by other interests.

Category three addressed student attitudes towards the value of interest-based versus rights-based approaches. A statistically significant result showed that fewer respondents agreed with statement 2 ‘Alternatives to litigation should never be used when the stakes are high’, illustrating a shift towards support of interest-based dispute settlement processes and away from rights-based ones.

The fourth category examined students’ perceptions of lawyers’ negotiating behaviour and values. Within this category, we found that at the end of the semester significantly fewer respondents agreed with statement 16 ‘In negotiating, a lawyer should work solely to get the best possible terms for her/his client’ than at the beginning. It would thus seem that students moved towards a view that lawyers should have regard to the broader interests of their clients rather than specific conditions.

The final category sought to assess changes in student perceptions about the role of lawyers in according primary weight to meeting client needs vs. client entitlements. Results indicated: (1) Significantly fewer respondents agreed with statement 9/15 ‘A lawyer’s obligation to society is best met by ensuring that s/he assists in gaining what the client is entitled to under law; (2) Significantly fewer respondents agreed with statement 17 ‘The only thing that clients want their lawyers to do is to win their case; (3) Significantly more respondents agreed with statement 19 ‘A lawyer’s obligation to society is best met by providing services that satisfy her/his client’s needs’; (4) Significantly fewer respondents agreed with statement 10 ‘To assist a client in dispute, a lawyer should first seek to determine what issues divide the parties by finding the law that strengthens their own client’s position.

All of these findings point clearly in the direction of a shift towards valuing broader client needs over narrow legal entitlements.

Taken together, then, the data show statistically significant changes in student attitudes from the beginning to the end of the semester for nine of the 19 statements. Of these, eight move in the direction of generally more collaborative and less adversarial processes, in other words, emphasising clients’ underlying interests, rather than rights and legal entitlements, and client empowerment rather than lawyer intervention. There was one anomalous result that has been discussed above.

It is, of course, impossible to ascertain with precision why this change occurred, given the range of uncontrolled factors inherent in this type of research. Nevertheless, it seems likely that the combination of information presented to students through lectures and reading and the skills to which they were introduced in the seminar program contributed to the outcome, though, as noted above, these appeared to have affected the various demographic groupings differentially. DRE readings, lectures, and videos introduced materials to be absorbed cognitively, and specific communication exercises and role plays, conducted in small group settings, provided direct experiential learning opportunities to acquire and practice ADR skills. Thus, although attitude change was not a goal of the unit, it is clear that it did occur in ways that run counter to the standard ‘lawyer’s standard philosophical map’ that guides the traditional law curriculum.

First, with respect to gender, the results appear to show broadly that women in the DRE class entered their law course with a greater interest in client empowerment than did their male counterparts and held those views even more strongly at the end of the semester, with the gender gap persisting.

Second, regarding age differences, the results suggest, to a limited extent at least, that when entering the law course older students more than younger ones were more likely to value interest- based interventions over rights-based ones and to favour client empowerment more than lawyer expertise. However, this gap narrowed and became statistically insignificant by the end of the semester, suggesting that the younger students gained greater appreciation of the importance and efficacy of interest-based and client-empowering approaches, perhaps because their stereotype of legal processes as positional and controlled by lawyers was challenged.

Third, concerning enrolment status, the results point in the direction of more educationally experienced students entering the law course with attitudes somewhat more collaborative and interest- based than those of their less experienced classmates, but that these differences lessened or disappeared by the end of the semester.

Fourth, with reference to occupational background, the findings suggest that, although there was little or no difference at the beginning of the semester, at the completion of the unit those students without a personal or family professional background relating to the law saw greater value in lawyers collaborating with other parties and being less positional than their counterparts with a background relating to the law.

Finally, in relation to previous experience with the court system, it can be seen that such experience had a relatively strong effect on student attitudes before they had attended their first class in the DRE, though attitudes on the whole were not favourable to court-based procedures and strongly interventionalist legal practice. Those with prior court experience tended to be less enthusiastic about adversarial approaches as embodied in the courts and positional lawyer-led negotiations than their classmates without such experience.

The study has a number of limitations that result in part from the fact that it is a pilot study conceived within considerable time and logistical constraints that did not allow for the pre-testing of the instrument.

Further limitations are the effects of sample and contextual variation, for which we were unable to put in place any controls.

Thus, in retrospect we recognise limitations with respect to the overall formulation of the survey instrument and to individual questions, both of which could be reduced in a follow-up to this pilot study. Nevertheless, we believe that the current research has generated sufficient statistically significant data in response to the individual statements to substantiate our overall conclusions. As well, it can provide a basis for future work in examining the role of ADR teaching in university law courses.

By surveying DRE students prior to the first lecture and immediately following the last, we have been able to document clear changes in their attitudes towards managing legal conflict.

In very general terms, there appear to be some relationships between student demographic and other background factors on the one hand and attitudes toward legal practice and the justice system on the other.

By the end of the unit, differences had narrowed between older and younger students but had widened between males and females and between those with prior court experience and those without. The first finding lends support to the value of having classes composed of students of different ages and backgrounds. The latter prompts the question: to what extent does ADR embody more feminine, or ‘relational’, values than traditional legal practices? This topic is worth exploring as increasing numbers of women graduate from law schools.

Our research has documented unambiguous evidence of change to some assumptions students brought to their law course. In general, they moved from more adversarial to more collaborative stances as measured along two themes: rights vs. interests, and lawyer intervention vs. client empowerment. This result is unsurprising since students were expected to gain greater understanding of these cornerstones of ADR and acquire skills in translating such principles into action. Nevertheless, if changes to the standard lawyer’s philosophical map usually acquired in the school curriculum are to be consolidated throughout the degree program, new information and skills must be embraced, not merely absorbed.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/LegEdDig/2008/19.html