community | The Australian Dispute Resolution Research Network

This paper is part of a series presented at the 2018 7th ADR Research Network
Roundtable hosted by University of the Sunshine Coast Law School. The 8th ADR Research Network Roundtable will be held in December 2019 in Melbourne, hosted by LaTrobe Law School.

by Jackie Weinberg , Monash Law School

Over recent years, ADR has become an integral part of Australian legal practice. This, along with a number of other forces, has led to a recognition that ADR needs to be taught in law schools. In my PhD research, I explore whether it follows that ADR should be taught in clinical legal education (CLE). In this paper, I report the findings from my PhD research addressing the question of the role of ADR in CLE. Drawing upon interviews with clinicians, I consider whether ADR ‘fits’ within CLE, and if so, on what basis.

Jackie presenting her paper on 3 December 2018

My paper shows that clinicians saw CLE as striving to have a strong link to “social justice” and “legal service”. Similarly, they viewed ADR as having access to justice as its focus. Although the links were not always explicitly made by the participants, the implicit connection and “value” of ADR in CLE, in their minds, indicated that they both align with a common goal of furthering access to justice. Clinicians believed that a common mission exists between ADR and CLE in the form of the advancement of social justice. Community Legal Centres (CLCs), incorporating clinical programs, utilise ADR to accomplish their mission of social justice and this facilitates the implementation of clinical practice goals.

Some clinicians expressed caution that there are limitations in relation to ADR providing access to justice. However, in the course of exploring with the participants the issues and concerns of both CLE and ADR, it became apparent that clinicians still viewed ADR as integrally linked to social justice concerns and the advancement of access to justice. Clinicians viewed ADR as a valuable component of CLE, enhancing student awareness about social justice and the various options for dispute resolution. Bloch echoes these views, stating “clinical legal education has always had a broader goal-to teach law students about what lawyers do and to understand lawyers’ professional role in the legal system in the context of having students provide various forms of legal aid services.”[1] Bloch goes on to emphasise that because ADR and clinical education share overlapping goals of advancing the interests of parties and addressing deficiencies in access to justice, ADR education and CLE are “slowly integrating and advancing beyond the teaching and practice of basic negotiation skills that have been included in the clinical curriculum for years.”[2] Bloch opines, “clinical programs that teach and practice ADR can inform, improve, and reform not only legal education, but also-over time-the practice of law and the legal profession as well, thereby furthering the social justice goals of the global clinical movement.”[3]

From my findings and supported literature, I argue that the close association between the social justice “missions” of CLE and ADR, enhanced by their relationships with CLCs and legal aid programs, provides a solid foundation for the teaching of ADR in CLE.

weinberg

Jackie Weinberg is a law lecturer, PhD Candidate, and Clinical Supervisor in Monash Legal Practice Programs at the Faculty of Law, Monash University. Jackie’s research is focused on an exploration of ADR in clinical legal education. Jackie recently published an article in the IJCLE titled: Keeping Up With Change: No Alternative To Teaching ADR In Clinic. An Australian Perspective. In addition to ADR, Jackie has keen interest in student well-being and technology and the law, focusing on access to justice in clinical legal education.

[1] Frank S. Bloch, The Global Clinical Movement (Oxford University Press, 2011) 167

[2] Ibid.

[3] Ibid.

What does it mean to think communally about mediation ethics? It’s tempting to conceive ethics as a set of abstract rules or principles formulated by experts and then imposed from above. However, another way to think of ethics is as the product of a dynamic, community oriented process. Experienced mediators who seek to adopt an ethical attitude to their practice will notice patterns in their approaches to various disputes. Reflection upon these patterns then supplies the foundation for formulating general guidelines that arise organically from the process. This approach to identifying principles of mediation practice treats these principles are subsidiary to the situational nature of ethical judgments.

The model of mediation ethics sketched above is community oriented, rather than individualistic. This is because it recognises that the source of meaningful ethical guidelines lies in the accretion of experience in different mediation contexts over time. Mediators, then, can learn not just from their own practice, but from the experiences of others who accept the same general ethical outlook. Mediation ethics depends on the sharing of principles and guidelines throughout the mediation community. This makes full use of the store of knowledge reflected in the diverse experiences of mediators.

The community oriented model of ethics outlined above points to the importance of recognising mediation as a profession with its own specialties. This applies not only at the general level of recognising the distinctiveness of mediation, but also at the level of recognising the particular challenges that arise in, say, family mediation and allowing a store of knowledge to arise about the ethical guidelines applicable to family mediators. It may be that beyond the overarching value of party self-determination, different forms of mediation will generate quite different guidelines for ethical practice.

I do not mean to suggest there is anything radical or groundbreaking about this model. Indeed, I think it describes what already happens on an organic basis. However, the organic nature of ethics is not always fully appreciated. This results in the adoption of abstract principles that can distort or mask the evolved character of the guidelines practitioners actually follow. A mature model of mediation ethics will not hide the complexities of mediation behind the veneer of impartiality. It will embrace those complexities and challenge itself to develop ethical guidelines that can cope with them.

I’ve written previously about the evolution of ethical and legal judgments in my chapter on ‘Pre-Reflective Law’ in Maksymilian Del Mar (ed), New Waves in Philosophy of Law (Palgrave Macmillan, 2011), as well as other publications. I’m interested in exploring further what this means for mediation theory and practice.