Integrating Dispute Resolution into Law School Courses

PRINCIPAL MENTOR:

Leonard L. Riskin, School of Law

ADAPTERS:

DePaul University, Hamline University, Inter American University of Puerto Rico, Ohio State University, Tulane University, University of Washington

The Innovation

Traditional litigation, though sometimes the best way to settle differences, has given rise to a tide of dissatisfaction. Complaints include high cost, delay, emotional trauma for the parties, and inadequate remedies. Each of these deficiencies stems in part from the tendency of law school education to focus on litigation and the adversarial view of human relations on which it is based. In response to the problems surrounding traditional litigation, an array of programs has been developed to foster alternative methods of dispute resolution, commonly called ADR, for alternative dispute resolution. ADR includes such processes as negotiation, mediation, and arbitration or combinations thereof.

Beginning in 1985, the University of Missouri, Columbia, School of Law systematically integrated alternative dispute resolution, taught through simulations, into all standard first year law school courses. That project produced law school course books, an instructor's manual, and a series of videotapes of simulated situations. Through this dissemination project the university's Center for the Study of Dispute Resolution supported six institutions in creating and strengthening ADR instruction for law school students.

Outcomes

All six adapting institutions introduced or expanded instruction in alternative dispute resolution in ways that appear to be permanent and promise further expansion. Between one and seven courses, many of them first-year, were substantially altered to incorporate material on ADR. All schools added specialized dispute resolution courses at the upper level in the form of either classroom or clinical course offerings.

The disseminators' initial expectations that the adapters would follow their lead in integrating ADR teaching into first-year law courses early proved impossible to achieve. The project director posits the need for four conditions in order for this full-scale integration to take place: 1) at least one knowledgeable and committed lead faculty member who has time to work with colleagues; 2) a core of at least three other like-minded faculty members; 3) strong and visible support from the law school dean; 4) a consensus of the majority of the faculty, even if weak, that ADR should have a place in the first-year curriculum. The first condition held at all six institutions and the third at the four institutions that were not in the process of searching for a dean. The second and fourth conditions prevailed only at those two schools, Hamline and Ohio State, that had worked with ADR for several years in clinical settings and in specialized advanced courses.

The other four institutions chose to involve only those faculty members who were interested, and to place the ADR activities where such interest created opportunity. All made some attempt to include ADR in first-year courses, with outcomes ranging from substantial attention in one or more key courses to ADR simulations in large enrollment courses. The first-year legal writing course, particularly because it is taught in small sections, seemed to be especially hospitable to ADR materials and exercises, but ADR got attention in a wide range of courses taught by interested faculty.

Resistance to ADR had many sources. Some faculty simply did not believe in it or thought that it did not have a theoretical base. This was an attitude of which many were disabused through workshops and clinics conducted in the course of this project. Others worried about losing coverage of other material if ADR activities were introduced. Discomfort with the simulation process, especially the loss of classroom control, was a prevalent source of resistance. Still others saw difficulty in introducing hands-on activities into large courses.

Project leaders at the adapting campuses dealt with these problems in ways ranging from personal persuasion to workshops to semester-long training sessions enrolling both faculty and advanced students. Others made limited efforts at conversion and worked around the resisters, and one largely proceeded on his own.

At the end of the project's two years, two institutions (Inter American University and DePaul) had established negotiation and mediation institutes, in addition to Hamline, which already had one. Still another university was seeking funding for such an institute. Ohio State's College of Law had been given funds to add two new faculty positions in dispute resolution, in light of a general faculty decision to make dispute resolution a major part of the instructional program. The University of Washington and DePaul had created curriculum tracks in dispute resolution.

This project gave rise to a substantial amount of material for publication. Much of it is in the form of exercises and teaching materials that appear in Instructor's Manual to Accompany Dispute Resolution and Lawyers, by Leonard Riskin, James Westbrook and James Levin, 2nd ed. (West Publishing Co., 1998).

Particularly useful were two guides to briefing cases in a way that identifies the underlying interests of the parties to the dispute, rather than simply the applicable points of law. These guides were produced independently by two faculty members at two of the adapting institutions as a result of discussions at the second of the project's group conferences.

The principal mentor was unusually effective in offering workshops and demonstration classes which, among other things, served to persuade some faculty that ADR does indeed rest on a strong theoretical base. Particularly energizing for many adapting-team members was the prospect of publishing teaching materials and simulation exercises through the mentor institution's contracted books.

This project has been recognized through an award to the principal mentor and the University of Missouri-Columbia School of Law from the CPR Institute for Dispute Resolution, a coalition of leading corporations and law firms with offices in New York City. The award was for "Pioneering Work Introducing ADR into the Curriculum at the University of Missouri-Columbia School of Law and Assisting Other Law Schools in Developing Similar Programs."

Assessment

Hamline undertook an evaluation to see how students' attitudes toward ADR had changed as a result of instruction in the first-year course. Overall, they found an increase in students' orientation to ADR, largely as a result of the changed attitudes of women students. Women began the course with a more negative attitude toward ADR than men but moved strongly toward ADR by the end of the course. Men, on the other hand, actually moved slightly in the direction of adversarial proceedings.

Overall project evaluation was performed by an external evaluator who had served in that role for the University of Missouri's two earlier FIPSE-funded projects. Because the adapters were at such different stages of introducing ADR and took such different approaches to their work, no common statistical evaluation was possible. Thus the evaluation consists of a thoughtful essay on the nature of the innovation and its possibilities for dissemination. The evaluator notes that ADR appears to most faculty as heretical, challenging prevailing legal practice and, in its emphasis on active simulation, the prevailing pedagogy of law schools. For dissemination to be successful, these heresies must in some way be "tamed," presented in such a way that they are at least tolerable to a majority of the faculty.

The taming procedure inevitably results in a number of substantial changes, such as putting the pure dispute resolution strategies into a context of pre-trial negotiations in which the resolution occurs under the threat of eventual litigation. Although this solution is comforting to traditional faculty, it misses the point of ADR.

Compromises of preferred instructional procedures may also be necessary. If ADR is integrated across many courses, it must depend in part on marginally sympathetic faculty who do not understand how the simulations work and are not entirely comfortable with them. In both substantive and procedural cases, the danger lies in compromising basic intentions beyond recognition. Apparently this has not happened at either the mentor or the adapting institutions, probably because implementation was conducted slowly and carefully and left in the hands of committed faculty until others could be trained.

In view of the nature of the innovation and the difficulties of disseminating it is remarkable that the adapters succeeded in establishing a firm presence for a radically different approach to the training of lawyers.

Further Dissemination

The original University of Missouri project produced a steady stream of publications. The major products of the dissemination project itself are the teaching materials and simulations included in the instructor's manual for the second edition of Dispute Resolution and Lawyers, mentioned above. A 1998 symposium issue of the Florida Law Review focused on the dissemination project and included articles by the principal mentor, the evaluator, and five professors from adapting institutions.

Available information:

For further information, contact:

Leonard L. Riskin
Center for the Study of Dispute Resolution
School of Law
University of Missouri Columbia
Columbia, MO 65211
Telephone: 573-882-8084

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