Non-Adversarial Legal Education
A key criticism of legal education made by a number of non-adversarial justice or comprehensive law approaches – including therapeutic jurisprudence, creative problem solving and holistic law – is its focus on the case method as the pre-eminent approach to legal problem solving. Typically these cases are the most adversarial – those that the parties and their lawyers have not been able to resolve without an adversarial trial and often an appeal or two. The facts of the case are viewed through the lens of whether they fit into a particular legal category – negligence, breach of contract, criminal offence and so on – and what is the appropriate remedy. The human dimension of the problem – its psychological, relational, economic, moral, social, political and personal aspects and possible outcomes – are either ignored or given insufficient weight. Students’ creative problem solving abilities and their ability to help clients address these multiple dimensions of a legal problem are said by critics to be diminished by a conventional law school education.
A growing number of law schools are exposing students to aspects of non-adversarial justice or comprehensive law as part of their law school education. The website of the International Network on Therapeutic Jurisprudence lists law school programs that include therapeutic jurisprudence. (http://therapeuticjurisprudence.org)
At Monash University Faculty of Law in Melbourne, Australia – where I lecture in law and am writing this blog – we have a number of ways in which law students are exposed to non-adversarial justice. The most recent innovation has been in relation to the first year compulsory unit, Research and Writing. The unit is in its second year of teaching. It was established as a response to calls from the legal profession for graduates with more highly developed basic skills. So in the unit, law library staff members teach students how to conduct research in the law and law lecturers teach students about legal problem solving and writing.
This year we have introduced a new class, which we call “Comprehensive Legal Problem Solving”. It is the class after the class on “conventional” or adversarial methods of problem solving. Students are exposed to data about how legal disputes are resolved in Australia – with only a small fraction reaching appeal courts – and the different methods of ADR available. They also are lectured on therapeutic jurisprudence, restorative justice, preventive law and creative problem solving. There follows a small group exercise where students are asked to give advice about options available to resolve a law problem without resort to litigation.
It has been a delight to be one of those teaching this class. Colleagues who I have contacted who have also taught the class report positive feedback. In one class, students were so interested in discussing the subject matter that they did not get to the exercise. I found that in my classes students were interested in the topic and were creative and insightful in the way they addressed the problem (which was a workplace discrimination problem). We are hoping that exposure to these ideas at an early stage of their legal education may inoculate students against developing an entrenched adversarial mindset. Time will tell how successful the class has been.
The Law Reform Committee of the Victorian Parliament in its recent report on Alternative Dispute Resolution and Restorative Justice endorsed the approach Monash University is taking to education in non-adversarial justice, referring with approval to the undergraduate elective unit “Non-Adversarial Justice”, which is in the third year of being taught at the Monash Faculty of Law. The Committee called for the incorporation of education on non-adversarial approaches in undergraduate and other forms of legal education. The Committee’s report is available at:
The Committee’s comment about the Monash program appears at p 356.
The undergraduate unit in non-adversarial justice has attracted good numbers of students over the three years it has been taught. This year we have 57 students taking the unit.
The Law Faculty has this year introduced a postgraduate unit in non-adversarial family law:
It is not enough that non-adversarial justice approaches should be taught simply as electives or as a one class addition to the first year curriculum – admirable as those initiatives may be. They should be integrated into the teaching of law subjects generally. After all, in the “real” world they are often the way legal disputes are now resolved. Further, there needs to be skills based units that promote the development of the skills needed to apply these approaches. In other words, there needs to be an integrated and comprehensive approach to non-adversarial justice and legal education.