What Will Be the Future of ADR in US Legal Education?

Recently, Doug Yarn (Georgia State) posted a message on the DRLE listserv describing his school’s decision to cut back its ADR program.

This was shortly after I saw a post by Nicholas A. Mirkay (formerly Creighton and now Hawaii) and Palma Joy Strand (Creighton), Disruptive Leadership in Legal Education, about their experience at Creighton, where they say that the “Negotiation and Conflict Resolution Program was transplanted to a Department of Interdisciplinary Studies in the Graduate School and its expertise and vision quarantined from the JD curriculum and students.”

Doug’s post stimulated discussion online and off, including an exchange with Jean Sternlight (UNLV). With their permission, I am posting a slightly edited version of their conversation about the future of ADR in legal education. After that, I add some comments, including a reminder to save the date for the conference at Pepperdine on June 18-19: Appreciating our Legacy and Engaging the Future: An International Conference for Dispute Resolution Teachers, Scholars, and Leaders.

Doug: I feel a need to explain to this community what happened to GSU’s search for a new faculty member in ADR. For various personal reasons, I am planning to retire in 2020. In anticipation, our dean asked me to chair the recruitment committee to find a successor who would start this coming fall. Most of you probably noticed the job posting I distributed on this listserv at the end of last summer. We were very excited (and challenged) by the quality of the applicants.

To make a long story short, after the “skype” interviews, our dean decided we needed to restrict the search to entry-level and untenured laterals only. The reasoning behind this was sound and I concurred. At the end of the on-campus interviews, our dean informed the committee that her preference would be not to fill the position this year or in the foreseeable future. Not because of the candidates, who were terrific, but because ADR – and particularly international ADR – would no longer be a strategic priority for the law school. Although the school will continue to offer the basic ADR courses in the program of instruction and maintain our mediation clinic, we will not maintain our Hewlett theory-building center, CNCR (since 1987), or our international arbitration and mediation center (ACIAM), or pursue a more robust ADR program after I retire. To use Michael Moffitt’s metaphors, GSU will not be an ADR island – maybe it will be some salt.

I’ll just note here that GSU Law is an extraordinary law school at which I have been privileged to teach. I have great respect for my dean and appreciate the many pressures and demands on law school deans. She only very recently took up the reins, and her thoughts about the position and the place of ADR in our strategic plan were evolving separately as we proceeded with the search. After several long conversations with her about this, I believe she has made the best decision for our law school at this point in its development.

I want to apologize to everyone on this list who applied. We never intended to waste anyone’s time or raise anyone’s hopes only to pull the chair out from behind at the last moment. Also, I want to thank everyone who applied. As Frank Sander often said, he shifted into ADR because of the better class of colleagues. I couldn’t agree more.

Despite whatever disappointment we caused by withdrawing the position, everyone has been extremely gracious and understanding. For this, I am particularly grateful. I’m also grateful for the opportunity to get to know some of our younger colleagues better and for the privilege of being exposed to their ideas, research, and aspirations. It’s also a bit intimidating to realize that I would have no chance today of getting a faculty position with this level of competition. At one point, I tried to convince the dean to let me hire two people as I am certain that with almost any combination of two hires from the applicant pool, GSU could have been a nationally-ranked “island” almost overnight … which brings me to a separate related issue.

As I anticipate the unwinding of much of my ADR work at the law school, I have to reflect on the future of ADR (much less CR) in legal education. I have long been ambivalent about many developments in the field, including some of the various manifestations of ADR in legal education. Without boring you with my thoughts on all this, I have been reminded by this recruitment experience that ADR is no longer the bright shiny new thing it once was, and, despite the unquestionable need to educate and train students in ADR representation, as legal education adjusts to the new post- great recession realities, the possibility of creating new islands of ADR seems limited at best.

Moreover, how sustainable are those that already exist? Unless there are other sustaining drivers in place creating deeper institutionalization, much of the support for things beyond ADR in the curriculum (ADR centers, specialty degrees, etc.) are mostly reliant on the interest and energies of those faculty members who are devoted to the field. When we retire or turn our energies elsewhere, what happens to our programs? I’m sure some of you have planned for transitions and program sustainability, but I am curious as to what your thoughts and feelings are on the matter.

Jean: Wow, Doug. Your post is long, but there is so much packed in – some sad, some brilliant, some hopeful.

  1. It is sad that your program will soon close. Perhaps the only positive spin is that the world recognized you were irreplaceable? But I know that is very small comfort.
  2. On the brilliant – you are totally right (I think) that the attitude of legal academia has changed/is changing towards our field. We discussed this a bit at last spring’s ABA DR conference and I know it was discussed extensively at our recent West Coast Dispute Resolution Conversation. I think at SEALs too? (No, we did not solve the problem yet …) In some ways perhaps we are victims of our success – no longer the shiny new program because ADR is everywhere. But if our programs close and fewer of us are hired, who will teach students what we think they need to know? I think this is time to really reflect on what it is we think we do that is so important. I would love to chat more about these issues at the upcoming ABA DR conference or elsewhere.
  3. Hopeful – For myself, I think the most valuable part of our enterprise is that we teach a different and far more complete approach to lawyering – one that considers the disputants and their needs/wants, and how to communicate, persuade, make decisions, etc. To me, that aspect of what we do matters a lot more than learning about particular forms of dispute resolution, though of course that is important in order to give disputants broader choices. To some extent, legal academia is moving in this lawyering direction – incorporating more psychology and “soft skills.” But for sure, this move is not happening fast enough! I think we need to use our skills in communication/persuasion etc. to further reform our schools, courses, the bar exam, etc. Onward!

Thank you, Doug, for raising so many important issues and for all the great work you have done over the years. I know you will continue to do great things, even in retirement.

Doug: Jean, I couldn’t agree more with your take on legal education. So, what’s the best way to teach these skills and modes of thought? Maybe it isn’t necessarily through ADR courses anymore. The “lawyer as problem-solver” thing didn’t seem to get enough traction on its own. Time to be more subversive? I haven’t been as active in national meetings so I’ve missed some of the discussion to which you referred, but I’d love to hear where others think all this is going.

Jean: We are on the same page once again!

I have been teaching some of it in a course called Psychology & Lawyering, but I think there are lots of ways – clinics, externships, lawyering courses, … Med schools are doing way better than law schools on this people skill stuff, ironically. Come to Minneapolis!

Doug: My son is in his third year of med school and I’ve been blown away by the thoughtful and clever ways that people skills are progressively integrated into the curriculum. I’ve always liked the med school model but law schools seem hesitant to make radical changes in pedagogy. No secret why. Clinics are expensive and time-consuming for the faculty, particularly in light of scholarship demands.

Until the non-clinical tenure-track faculty sufficiently value these skills and the science behind them and more schools in the elite and mid-levels are willing to invest and experiment, I don’t see much progress broadly in legal ed. At the end of the day, if not enough influential faculty members really “own” a program, it won’t survive. Increasingly, the profession gives lip service to the importance of soft lawyering skills but the economics of practice push hard the other direction. Ironically, our ADR position at GSU was sacrificed partially in favor of a position in law/tech/legal analytics, which is cool and certainly part of our students’ futures, but people skills are certainly not at the forefront. Unfortunately, applicants to law schools aren’t knowledgeable enough to demand such training.

My dean polled deans on the AALS dean listserv about whether ADR (just as an example of a people skills delivery mechanism) attracts students. My understanding is that she got a resounding no, except perhaps for a couple of LLM programs targeting mostly foreign students and a couple of Moffitt’s “islands.” This partially informed her decision to spend resources elsewhere. If it doesn’t put students with good GPAs and LSATs in seats, then most law schools can’t afford to do it. All the rational counter-arguments and idealistic principles I might muster have little weight if enrollment is the stated goal.

 

John: I appreciate Doug and Jean’s thoughtful comments and their permission to post them (and which I agree with).

The situations at Georgia State and Creighton are not isolated outliers, as reflected by the responses on the dean’s listserv and the widespread recognition at recent events that our field is no longer the trendy new, bright shining object.

Doug referred to Michael Moffitt’s (Oregon) article, Islands, Vitamins, Salt, Germs: Four Visions of the Future of ADR in Law Schools (and a Data-Driven Snapshot of the Field Today). Michael suggested that law schools have four metaphorical approaches to ADR. In schools with ADR “islands,” ADR is touted as an important, robust part of their programs. In “vitamin” schools, every student is required to “take at least the recommended dosage of ADR.” “Salt” schools consider ADR as a “vital seasoning for many different offerings, but never consumed on its own.” In some schools, individual faculty members “intentionally, but quietly, incorporate ADR as germs into their courses.”

Shifting metaphors, ADR in legal education may have been a tide coming into shore, creating a rich ecosystem of ADR programs and activities. Is the tide going out, so that parts of the system are washing away completely or disintegrating from islands and vitamins into salt or maybe just germs?

What is happening and why? What, if anything, can we do to preserve the benefits of our work and insights, perhaps by changing our approaches?

At the 2009 Ohio State symposium where Michael presented his ideas, Jean and I discovered that we independently had similar ideas about what our field might do and so we collaborated on an article, The Potential Contribution of ADR to an Integrated Curriculum: Preparing Law Students for Real World Lawyering. “It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources.”

Building on the ideas in that article, many colleagues in our community collaborated in the Legal Education, ADR, and Practical Problem-Solving (LEAPS) Project of the ADR in Law Schools Committee of the ABA Section of Dispute Resolution. We developed a rich website with resources to help faculty incorporate what we called “practical problem-solving” into a wide range of courses, including doctrinal, litigation, transactional, and ADR courses. I’m not sure how much impact this had or whether it would make much difference now.

There are a lot of barriers to changes in legal education. Jean’s and my article noted a series of ABA and other reports going back more than a century that recommended incorporating more practical instruction. Although there has been some movement in that direction, it has been slow and limited. Following a symposium at Missouri on legal education, I summarized a long list of pressures on law schools suggested by the presenters in Reforming Legal Education to Prepare Law Students Optimally for Real-World Practice. I reproduced the list in this blog post. Considering the multiple and cross-cutting pressures, innovative change is likely to be hard, slow, and perhaps not promoting the things we value.

Jean noted above that the “most valuable part of our enterprise is that we teach a different and far more complete approach to lawyering – one that considers the disputants and their needs/wants, and how to communicate, persuade, make decisions, etc.” I absolutely agree. In a post, What is (A)DR About?, I wrote that we “could think of DR as processes of planning, managing, and/or resolving disputes or something like this. This would include pretrial litigation and trial because DR isn’t limited to processes that are private or involve party self-determination.” Doug pointed me to a piece he wrote for mediate.com’s Mediation Futures Project, Re-conceptualizing the Work as Something Bigger than Ourselves – Reconciliation, in which he argued that we shouldn’t focus on the mediation process but rather on a goal of conflict resolution.

As Noam Ebner (Creighton) noted, our field is changing, in part because individuals and institutions are changing in major ways. Recognizing these changes, we need to skate “to where the puck is going to be, not where it has been,” as hockey star Wayne Gretzky said.

As all this shows, our community recognizes that major changes are underway and that we need to respond effectively to avoid having the values we provide get washed away with the upcoming tides. (Mixing lots of metaphors, I know.)

Pepperdine will host a very timely two-day conference, on June 18-19, where these issues will be front and center: Appreciating our Legacy and Engaging the Future: An International Conference for Dispute Resolution Teachers, Scholars, and Leaders. It should be a landmark event considering the stellar members of the planning committee and the plans for the conference. Be there or be square.

2 thoughts on “What Will Be the Future of ADR in US Legal Education?”

  1. This was also the focus of the recent discussion at SEALS on the Future of ADR Scholarship, which is summarized on the blog here: http://gb8.254.myftpupload.com/?p=13171. That discussion covered some of the historical place of ADR in the academy, as well as where a number of senior and junior scholars think the field may be going.

  2. Pingback: Alyson Carrel

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