Wednesday, October 28, 2015

Fallacies of ADR Career Advice: Fallacy #3

This is the third in a five-part blog series on advice to law students and young professionals interested in ADR as a career. The series is intended to examine the fallacies our students often hear, and to give us tools for both combating the fallacies and responding with more positive advice. Comments are welcomed! By Heather Scheiwe Kulp

 

Fallacy #3. You will not understand ADR unless you’ve practiced law for at least X years

I’m not sure exactly what this statement means, or what concerns underlie it. I can guess two: first, that young professionals do not have experience with the legal system and so do not understand ADR in the context of legal process; and second, that young professionals do not have enough experience in ADR to be able to practice it well.

Of course, young lawyers do not have much experience with the legal system and will benefit from learning how disputes are managed there. But most disputes never make it to the legal system. So, it seems that people with experience in dispute resolution, whether or not they have experience in the legal system, will actually thrive in the thick mud of pre-suit conflict, as opposed to needing extensive experience in the thin soup of post-suit conflict before beginning a career in ADR. Moreover, young professionals do have experience with problem solving and, as at least one study has demonstrated, actually have a better sense of how to make ethical law-related decisions during those problem-solving moments than attorneys who have been in practice for years.

Experience with ADR in law school is far more robust than even a few years ago, maybe because of the “institutionalizing” generation Welsh and Zumeta reference (p .4). Now, students can take courses on negotiation, mediation, facilitation, multi-party negotiation, international negotiation, arbitration, restorative justice, etc. Beyond sitting in class, opportunities for practicing ADR in law school abound. Students have founded ADR-related student organizations. They are actively engaged in teaching and training, some even leading their own Negotiation working groups, as in the Harvard Negotiation Institute. Students participate in and coach other students in national and international competitions. Students represent clients as dispute systems design consultants or attorneys in mediation. Students serve as neutrals in actual mediations or arbitrations. Students facilitate difficult conversations on their campuses, in their communities, in the Middle East and around the world. Student boards manage topical journals and organize major events in the field. To say that law students do not gain extensive experience in ADR is to ignore the many rich opportunities that educators work hard to provide—and that students select in droves.

In addition to these opportunities in law school, and unlike “law” which we do not practice except in certain contexts, we practice dispute resolution every day. One colleague, a law firm attorney who also teaches negotiation and serves as a facilitator in a variety of contexts, tells his firm’s associates: “Dispute resolution is what attorneys do all the time, not just when they are negotiating a settlement agreement or finalizing a merger. We negotiate with superiors, clients, potential clients, the ‘other side,’ judges, court clerks, co-counsel, law professors, study-group partners, our significant others, etc. Learn the skills now, because you can’t look them up on WestLaw, but you’ll need to access them every day.”

So, if law students practice and refine dispute resolution skills in law school, those skills, unlike the skills of litigation or contract drafting, frequently are useful, practicable, and applicable. Thus, law students who study dispute resolution actually are more prepared to work in dispute resolution directly after law school than most students are prepared to work in litigation or corporate law.

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