ADR in the Law School Curriculum: Opportunities and Challenges

I. Introduction

In this Symposium, a distinguished group of authors explore the impact
of Alternative Dispute Resolution (ADR) on our legal system, and how
law schools have responded to this development. The articles grew out of
a program entitled “Dispute Resolution Throughout the Law School
Curriculum: Opportunities and Challenges,” sponsored by the Section on
Alternative Dispute Resolution of the Association of American Law
Schools. They focus on a number of efforts to incorporate dispute
resolution into law school curricula. Special attention is given to the
efforts of the University of Missouri-Columbia Center for the Study of
Dispute Resolution, an early leader in ADR curricular innovations, to help
integrate dispute resolution into curricula at several other law schools.⁽³⁾

II. The Rise of Alternative Dispute Resolution
in the Legal System

The rise of ADR in the legal system has been well documented.⁽⁴⁾ At the
federal level, Congress recently contributed to this rise by passing the
Alternative Dispute Resolution Act of 1998, which requires federal district
courts to authorize the use of ADR in all civil actions and to encourage
litigants to use the ADR process.⁽⁵⁾ This follows passage of two legislative
acts designed to increase the use of ADR by federal agencies,⁽⁶⁾ and two
executive orders directing federal litigation counsel to suggest and use
ADR in appropriate circumstances.⁽⁷⁾

States also have been very active in adopting ADR measures, with
Florida playing a leading role. Florida’s use of mediation in the judicial
system began in the 1970s, and in 1989, Florida authorized all state courts
to require mediation or advisory arbitration in civil litigation.⁽⁸⁾ In 1992,
Florida became the first state to adopt mediator ethical standards that
could be enforced through complaint and advisory opinion procedures.⁽⁹⁾ In
1998, courts referred more than 120,000 reported cases to mediation,⁽¹⁰⁾
compared to about 34,000 in 1989.⁽¹¹⁾ Moreover, since statistics are
collected only from those circuits that designate a mediation coordinator,
and since many parties now proceed to mediation prior to filing a civil
action, “the actual number of mediations conducted far exceeds those
reported.”⁽¹²⁾ The Florida Supreme Court has certified several thousand
mediators, and almost 10,000 individuals have completed Supreme Court
certified mediation training.⁽¹³⁾

III. Law School Response

Law schools gradually responded to this rise in ADR activity. The
concept of teaching negotiation and related skills was endorsed by the
1979 American Bar Association Task Force on Lawyer Competency,⁽¹⁴⁾ the
1980 Special Committee for a Study of Legal Education,⁽¹⁵⁾ the then-Chief
Justice of the United States Supreme Court,⁽¹⁶⁾ and the more recent
McCrate Report.⁽¹⁷⁾ Law School accreditation standards now recommend
that alternative methods of dispute resolution be included in a school’s
professional skills curriculum.⁽¹⁸⁾

Since 1983, the American Bar Association Section on Dispute
Resolution⁽¹⁹⁾ has periodically surveyed law schools about their ADR
offerings. The first survey in 1983 listed forty-three law schools, or about
25 percent of U.S. law schools, as offering ADR courses.⁽²⁰⁾ The next
survey in 1986 noted that “a majority of the ABA approved law schools in
America now offer courses or clinics on ADR. This is a significant
achievement in a field that was barely known a decade ago.”⁽²¹⁾ In 1989, the
survey listed 550 courses in 174 law schools, and the most recent survey
in 1997 identified 714 courses in 177 schools.⁽²²⁾ Almost all law schools
offered dispute resolution courses, most with multiple offerings. The 1997
report noted that “the expansion of ADR courses and clinical programs is
dramatic, matching, if not surpassing, the growth in ADR generally.”⁽²³⁾

At the University of Florida, the College of Law began offering a
Negotiation course in the 1970s; its pedagogy included simulated
negotiations with videotaping, professorial observation and critiques, and
student self-critiques.⁽²⁴⁾ The College subsequently created a course on
Mediation and Other Dispute Resolution Processes, that can be offered
independently or in combination with Negotiation. Recently, the faculty
approved an Institute for Dispute Resolution, with the mission of
encouraging and enhancing teaching, research and service in dispute
resolution. The College has developed a Mediation Clinic⁽²⁵⁾ and alternative
dispute resolution seminars that address advanced subjects such as Dispute
Systems Design and Comparative Dispute Resolution. Additionally,
faculty members have created specialty ADR courses, such as
Environmental Dispute Resolution, International Litigation and
Arbitration, Collective Bargaining and Arbitration, and an Advanced
Course in Labor Arbitration. With grant funding, the Institute for Dispute
Resolution has established an agricultural mediation service, provided
conflict resolution training in Haiti, co-sponsored a natural resources
leadership institute, initiated a mediation system for juveniles, and
partnered with the local court system to create a community mediation
program.

IV. The Symposium Articles

As noted above, in January of 1998, the Association of American Law
Schools Section on Alternative Dispute Resolution sponsored a program
entitled “Dispute Resolution Throughout the Curriculum: Opportunities
and Challenges.” The program focused on diverse efforts to incorporate
dispute resolution into the law school curriculum. Past approaches have
included adopting dispute resolution units in mainstream courses; adding
new courses such as negotiation, mediation, mediation clinics, or general
ADR courses; or some combination of these options. The University of
Missouri-Columbia Center for the Study of Dispute Resolution, an early
leader in ADR curricular innovations, received a grant from the U.S.
Department of Education in 1995 to work with six law schools⁽²⁶⁾ that
wished to develop adaptations of the Missouri Plan to integrate dispute
resolution into traditional courses. In Part I of this symposium, Project
Director Leonard Riskin of Missouri provides an overview of the project,⁽²⁷⁾
followed by comments from Professor Ronald Pipkin, a legal sociologist
from the University of Massachusetts, who evaluated the project for the
Department of Education.⁽²⁸⁾ We then hear from commentators from several
of the schools involved in the project. Professors Sarah Cole, Nancy
Rogers and Joseph Stulberg discuss Ohio State’s incremental expansion
of their ADR curriculum into one of the outstanding programs in the
country.⁽²⁹⁾ Professor Lea Vaughn explains the efforts to integrate ADR into
the curriculum at the University of Washington, providing insight into the
faculty dynamics involved in such efforts.⁽³⁰⁾ Professor Kate O’Neill
describes how the University of Washington successfully added an ADR
perspective to a traditional Legal Writing Course.⁽³¹⁾ Professor Katheryn
Dutenhaver discusses the DePaul program, including the notions that
decanal support is critical, and that one must take the faculty as one finds
it.⁽³²⁾ Professor James Coben of Hamline muses on that school’s efforts to
change the lawyer’s standard philosophical map.⁽³³⁾ This is followed by the
commentary of Dean Paul Brest, who developed the “complementary
curriculum” at Stanford.⁽³⁴⁾ Finally, Professor Riskin responds to some of
the other writings.⁽³⁵⁾

Part II of this Symposium, to be published in the next issue of the
Florida Law Review, contains articles by two University of Florida
colleagues who have been instrumental in carrying out the mission of the
College of Law’s Institute for Dispute Resolution. Professor Don Peters,
Director of the Mediation Clinic,⁽³⁶⁾ writes a narrative about a small claims
mediation, discussing many “hot button” issues in the teaching and
practice of mediation.⁽³⁷⁾ Alison Gerencser, Associate Director of the
Institute for Dispute Resolution, writes about the public’s common
confusion regarding the distinctions between mediation and other forms
of ADR, such as arbitration.⁽³⁸⁾

V. Conclusion

These articles reflect the current state of the art in the teaching of
ADR, and should give any law professor or law school considering this
subject a variety of ideas on how to incorporate ADR into either an
individual course or the curriculum as a whole. The articles also provide
members of the bench and bar, many of whom did not receive ADR
instruction in law school, a better idea of how law schools are responding
to the widespread adoption of ADR in the American legal system. Thus,
this issue provides a resource that should be consulted by anyone with a
serious interest in the teaching of ADR. Moreover, the ideas and programs
discussed here can be expected to provide a framework for future
discussions of alternative dispute resolution in the law school curriculum.

1. © 1998 by Robert B. Moberly. All rights reserved.

2. ** Trustee Research Fellow, Professor of Law, and Director, Institute for Dispute Resolution,
University of Florida College of Law; B.S., 1963; J.D., 1966, University of Wisconsin. This
symposium has been developed from presentations at the annual meeting of the Association of
American Law Schools Section on Alternative Dispute Resolution, chaired by Professor Moberly,
on January 7, 1998, in San Francisco, California.

3. These efforts were funded by a grant from the U.S. Department of Education Fund for the
Improvement of Post-Secondary Education.

4. See, e.g., Leonard L. Riskin & James E. Westbrook, Dispute Resolution and
Lawyers (2d ed. 1997); Nancy H. Rogers & Craig A. McEwen, Mediation: Law, and Policy,
Practice (1994); Stephen B. Goldberg, Frank E.A. Sander & Nancy H. Rogers, Dispute
Resolution: Negotiation, Mediation, and Other Processes (2d ed. 1992).

5. See Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315, §§ 3-4, 112 Stat.
2993, 2993-94 (to be codified at 28 U.S.C. §§ 651-658). President Clinton signed the act on October
30, 1998. See Alternative Dispute Resolution Act, 112 Stat. at 2998. Litigants in all civil cases will
be required to consider the use of ADR, and courts must provide litigants with at least one ADR
process including, but not limited to, mediation, early neutral evaluation, mini-trials, and arbitration.
See id. § 4, 112 Stat. at 2994 (to be codified at 28 U.S.C. § 652(a)). Moreover, every district must
designate an employee or judicial officer who is knowledgeable in ADR practices to implement and
evaluate its ADR program. See id. § 3, 112 Stat. at 2994 (to be codified at 28 U.S.C. § 651(d)).

6. The two acts are the Administrative Dispute Resolution Act, Pub. L. No. 101-552, 104
Stat. 2736 (1990), which was amended by the Administrative Dispute Resolution Act of 1996, Pub.
L. No. 104-320, 110 Stat. 3870, and the Negotiated Rulemaking Act of 1990, Pub. L. No. 101-648,
104 Stat. 4969.

7. See Exec. Order No. 12,278, 56 Fed. Reg. 55, 195 (1991); Exec. Order No. 12, 988, 61
Fed. Reg. 4,729 (1996).

8. See Fla. Stat. § 44.102 (1997); id. § 44.103.

9. See Robert B. Moberly, Ethical Standards for Court-Appointed Mediators and Florida’s
Mandatory Mediation Experiment, 21 Fla. St. U. L. Rev. 701, 705 (1994).

10. See Sharon Press, Introduction to Sharon Press & Kimberly Kosch, 1998 Florida
Mediation/Arbitration Programs: A Compendium vi (11th ed. 1998).

11. See Jennifer L. Mason & Sharon B. Press, Florida Mediation/Arbitration
Programs: A Compendium viii (1992).

12. Press, supra note 8, at vi. For detailed discussions of the extensive use of ADR in Florida,
court-sponsored and otherwise, see generally 1 Continuing Legal Educ., Fla. Bar, Alternative
Dispute Resolution in Florida (1991); 2 Continuing Legal Educ., Fla. Bar, Alternative
Dispute Resolution in Florida (2d ed. 1995); James J. Alfini, Trashing, Bashing, and Hashing
It Out: Is This The End of “Good Mediation”?, 19 Fla. St. U. L. Rev. 47 (1991); Sharon Press,
Institutionalization: Savior or Saboteur of Mediation?, 24 Fla. St. U. L. Rev. 903 (1997);
Moberly, supra note 7.

13. See Press, supra note 8, at vi.

14. See Section of Legal Educ. and Admissions to the Bar, ABA, Report and
Recommendations of the Task Force on Lawyer Competency: The Role of the Law
Schools 3-4 (1979).

15. See ABA, Law Schools and Professional Education: Report and
Recommendations of the Special Committee for a Study of Legal Education of the
American Bar Association 103 (1980).

16. “Even fewer law schools focus on training in the skills–the arts–of negotiation that can
lead to settlements. Of all the skills needed for the practicing lawyer, skill in negotiation must rank
very high.” Warren E. Burger, Isn’t There a Better Way?, 68 A.B.A. J. 274, 275 (1982).

17. See Section of Legal Educ. and Admissions to the Bar, ABA Legal Education and
Professional Development–An Educational Continuum 254 (1992) (Report of the Task
Force on Law Schools and the Profession: Narrowing the Gap).

18. See Standards for Approval of Law Schools Standard 302(a)(4) & Interpretation
302-1 (1998).

19. Previously known as the Special Committee on Alternative Means of Dispute Resolution,
and then as the Standing Committee on Dispute Resolution.

20. See generally Special Comm. on Alternative Means of Dispute Resolution, ABA,
Law School Directory of Dispute Resolution Programs (1983).

21. Frank E.A. Sander, Foreword to Standing Comm. on Dispute Resolution, ABA,
Directory of Law School Dispute Resolution Courses and Programs (1986).

22. See Kimberlee K. Kovach & James J. Alfini, Foreword to Section of Dispute
Resolution, ABA, Directory of Law School Alternative Dispute Resolution Courses
and Programs (2d ed., 1997).

23. Id.

24. See generally Robert B. Moberly, A Pedagogy for Negotiation, 34 J. Leg. Educ. 315
(1984). This article was part of a symposium on “Alternative Dispute Resolution in the Law
Curriculum.” See Symposium, Alternative Dispute Resolution in the Law Curriculum, 34 J. Legal
Educ. 229 (1984).

25. The mediation clinic is discussed in more detail in Don Peters, Oiling Rusty Wheels: A
Small Claims Mediation Narrative, 50 Fla. L. Rev. 761 (1998).

26. The law schools are those at DePaul University, Hamline University, Inter American
University, Ohio State University, Tulane University, and the University of Washington.

27. See Leonard L. Riskin, Disseminating the Missouri Plan to Integrate Dispute Resolution
into Standard Law School Courses: A Report on a Collaboration with Six Law Schools, 50 Fla.
L. Rev. 589 (1998).

28. See Ronald M. Pipkin, Teaching Dispute Resolution in the First Year of Law School: An
Evaluation of the Program at the University of Missouri-Columbia, 50 Fla. L. Rev. 609 (1998).

29. See Sarah Rudolph Cole et al., Sustaining Incremental Expansion: Ohio State’s
Experience in Developing the Dispute Resolution Curriculum, 50 Fla. L. Rev. 667 (1998).

30. See Lea B. Vaughn, Integrating Alternative Dispute Resolution (ADR) into the
Curriculum at the University of Washington School of Law: A Report and Reflections, 50 Fla. L.
Rev. 679 (1998).

31. See Kate O’Neill, Adding an Alternative Dispute Resolution (ADR) Perspective to a
Traditional Legal Writing Course, 50 Fla. L. Rev. 709 (1998).

32. See Katheryn M. Dutenhaver, Dispute Resolution and its Purpose in the Curriculum of
DePaul University College of Law, 50 Fla. L. Rev. 719 (1998).

33. See James R. Coben, Summer Musings on Curricular Innovations to Change the
Lawyer’s Standard Philosophical Map, 50 Fla. L. Rev. 735 (1998).

34. See Paul Brest, The Alternative Dispute Resolution Grab Bag: Complementary
Curriculum, Collaboration, and the Pervasive Method, 50 Fla. L. Rev. 753 (1998). The
“complementary curriculum” is a series of courses, including dispute resolution, designed to teach
professional judgment. See Paul Brest & Linda Krieger, On Teaching Professional Judgment, 69
Wash. L. Rev. 527, 527-32 (1994).

35. See Leonard L. Riskin, A Response to Professor Pipkin, 50 Fla. L. Rev. 757 (1998).

36. Professor Peters also directs the Virgil Hawkins Civil Clinic.

37. See Peters, supra note 23.

38. See Alison Gerencser, Alternative Dispute Resolution has Morphed into Mediation:
Standards of Conduct Must be Changed, 50 Fla. L. Rev. 843 (1998).

                       

Robert B Moberly

Robert B. Moberly, Professor of Law and Dean Emeritus, received his B.S. degree in economics and his J. D. from the University of Wisconsin. Prior to his service as Dean at Arkansas, he was Trustee Research Fellow and Professor of Law at the University of Florida, where he served as Director… MORE >