At AALS in early January, a number of us were on a panel musing about the future of dispute resolution writ large and then the impact that technology and other changes were going to have on legal education. This is John’s follow-up to that panel and I invite you to use the comments to expand this conversation. Enjoy!
Hi folks.
I am giving a presentation about the future of DR in legal education at a symposium at Ohio State in a few weeks and I would like to pick your collective brains about a theory I have been doodling. Normally, I suggest that people respond individually (which you can do if you like), but this may be something that people would like to discuss on this listserv. If so, feel free to “reply to all.”
I assume that the aggregate amount of explicit DR education in law schools (ie, in “DR courses”) is not likely to increase substantially in the next 10-20 years for lots of reasons (including but not limited to bar exam curricular imperatives, specialized doctrinal commitments of tenure-track faculty, incomplete legitimacy of DR within the legal academy, the cost of teaching small-section DR courses, and economic constraints in the economy generally and higher education in particular). I take this assumption as a given, but if you disagree, you can let me know.
(A footnote on my terminology: When I refer to DR courses, I mean things like DR survey courses as well as mediation, negotiation, arbitration, and specialized DR courses — as distinct from courses that don’t focus explicitly on ADR processes very much, such as most of the 1L curriculum. Also, I refer to “DR faculty” as those who write and/or teach about DR as at least part of their workload. I consider lawyering and litigation to be important parts of DR, though I don’t consider teaching legal doctrine in itself to be DR education.)
I imagine that the only way there might be a substantial increase of attention to DR issues would be through non-DR courses. I assume that lots of people teach both DR and non-DR courses and I gather that some DR faculty teach non-DR courses differently than non-DR colleagues. For example, in a civil procedure course, in addition to teaching the standard Civ Pro rules, some DR faculty may have a different approach in covering at least some of the material. (Jean Sternlight wrote an excellent article about this in the Civ Pro context and I imagine that there may be counterparts for other courses.) Thus, DR faculty might focus on what the parties’ interests were, why the lawyers handled the cases as they did, how lawyers can use the rules to accomplish clients’ objectives, etc. I am particularly referring to something like a general mindset of a lawyer as a client-oriented prospective problem-solver rather than particularly focusing on the law of DR (eg, enforcement of arbitration clauses) or use of explicit DR techniques (eg, doing negotiation exercises).
My questions are about your teaching experiences and how we can extrapolate from them:
Do you teach a non-DR course differently than you think your non-DR colleagues do? If so, in what course(s) do you do this and how do you do it differently?
Assuming that we could identify a set of things that some DR faculty do differently from non-DR faculty in teaching non-DR courses, how could we interest non-DR colleagues in incorporating them in their courses and what would they need to be able to incorporate them effectively? (I assume that such an effort might work only if done by faculty who are interested in doing so, rather than being compelled by a curricular mandate, and that it is not necessary for every instructor in a school to do this to have some real benefit.)
Let me note that I am not sure that how much something like a problem-solving mindset is used in non-DR courses or how feasible it is to substantially increase students’ exposure to DR in this way. That’s why I am asking for your ideas.
I have just started to research these issues. Obviously, there has been a lot written about problem-solving and teaching it in DR courses – I am particularly asking about teaching in non-DR courses. I know that there is some good relevant literature – see, eg, the 2005 bibliography in the Cardozo Journal of Conflict Resolution — and I would be interested in your suggestions about what you think would be particularly helpful to read related to the preceding questions. Don’t be shy about recommending your own stuff.
Thanks very much.
John
PS. For more information about the Ohio State symposium, see http://moritzlaw.osu.edu/jdr/symposium.html. This is a continuation of the discussion at the AALS meeting a few weeks ago and you can download a podcast of that session at https://memberaccess.aals.org/eWeb/DynamicPage.aspx?webcode=SesDetails&ses_key=b3c3c544-a61f-4ed4-abf4-b60f62ed3e2b . (Be patient with the download – it takes some time.)
