Heather and I have been talking about what law schools can do to help students develop “ADR careers.” In our last episode, Heather responded to my question about what she meant by ADR careers and she suggested that it may be more useful to focus on skills than specific jobs. (In that post, you can access links to all the previous posts in this conversation.)
This is my response to her last post. Heather largely agrees with my comments below, with two caveats noted at the end. I think her points are very well taken and, indeed, I have been advocating the broader conception of negotiation that she describes.
This post concludes this conversation with Heather, but keep your eyes open for another conversation.
And if you would like to have a conversation with me on the blog, let me know.
I think that our ideas are converging, Heather. I agree that it helps to disaggregate “jobs” into skills. This conversation reminds me of the work of the ABA Section of Dispute Resolution’s LEAPS (Legal Education, ADR, and Problem-Solving) Project. As part of an initiative to incorporate more ADR instruction in many law school courses, including some that aren’t generally considered as “ADR courses,” we defined a set of what we called “practical problem-solving” skills. These included:
● General interpersonal skills (collaboration, communication, self-awareness and reflection, and dealing with cultural differences)
● General lawyering skills (managing the lawyer-client relationship, client interviewing and counseling, fact gathering and research, writing, and analysis of clients’ alternatives)
● Particular dispute resolution skills (negotiation, representation in ADR processes, dispute resolution system design, dispute resolution process selection, and function as a neutral)
● Professionalism (professional responsibility and ethics, managing legal work, business model of legal practice, and addressing issues of substantive or procedural justice)
(A lot of people participated in the LEAPS Project who deserve acknowledgment, notably Deborah Eisenberg, Jill Gross, Jim Hilbert, Sean Nolon, Jean Sternlight, and Kim Wright.)
This list complements your typology of skills, which includes teaching / training, coaching / consulting, designing, and providing direct services. (In your post, you include specific examples of each category.)
Both sets of skills are used by professionals in advocacy roles as well as neutral roles. As you wrote, “ADR skills are indeed useful—and can give you an advantage—in a variety of legal and non-legal positions.”
The two lists overlap about counseling (or coaching) and providing direct services (including DSD as a service in the LEAPS list rather than a distinct skill in your list).
I think that the two lists differ somewhat in the unit of analysis. The LEAPS list generally focuses on skills used within a case and your list focuses more on distinct types of services that professionals may provide, though there is some overlap as I noted.
I think that it would be great if law school faculty and career development offices encouraged students to develop these skills and provided opportunities to do so. This would be useful for all students and particularly those who feel a calling to the ADR field.
This brings me back full circle to the beginning of our conversation. Some law students are much more comfortable in a neutral role rather than as an advocate. I think it’s fine to counsel them about seeking work in a neutral in their first jobs out of law school as long as they are educated about the challenges, get advice to prepare them to deal with the challenges, and consider the possibility that they may not get opportunities to work as a neutral until later in their careers. A particularly important part of work as a neutral involves the skills described above, so students interested in that direction should focus particularly on developing them.
What do you think?
It’s safe to say I agree with almost all of this, and I like that you brought in the LEAPS skills
I think the two small points of disagreement might be 1) where negotiation is placed (as a dispute resolution skill, when I might place it in the general lawyering skills, since lawyers negotiate all the time internally and externally); and 2) the last paragraph about bringing it back to the original conversation seems to suggest that “neutral” and “advocate” are the two contrasting roles in the ADR field.
For me, I’d say our conversation actually highlighted that there are more roles under the ADR umbrella, including dispute systems designer, manager, facilitator, etc. And, since many law students will not necessarily be representational lawyers for their careers, I think it’s important for us to think outside “the case” and think more generally about skills used in a variety of roles.