Educating lawyers to deal holistically with conflict: why the legal curriculum is an important tool and how it can add value to legal practice

• 1 Introduction

  This commentary is provided as part of an interdisciplinary discussion developed for a Notes from the Field for The International Journal of Restorative Justice exploring key elements of restorative justice and its place in the curricula of university law schools. It responds to and provides an Australian context for the main text authored by Professor Grazia Mannozzi, a specialist in the field.
  Participants in this discussion were asked to focus on:

  1. Reasons why legal education on restorative justice is necessary and/or useful

  2. Challenges of legal education on restorative justice at the university level

  3. Good practices

  4. Innovation, development, further perspectives

  This commentary adopts those headings (slightly modified) and also adds an overview of the Australian experience.

• 2 Why is it important to teach law students about restorative justice?

  Professor Mannozzi’s comments and research together with numerous commentators and academics cited in the bibliography (and added to in this commentary) provide all the persuasion necessary. ‘An integrated personal and professional framework prepares attorneys for the holistic approach to conflict resolution inherent in restorative justice’ (Vedananda, 2020: 109).

  Teaching these subjects in universities would help sensitize future practitioners to their principles and methods, enabling them to reflect deeply, from an early stage in their careers, on restorative-therapeutic analyses of prevailing processes, objectives, norms, institutions, and ways of working. (Marder & Wexler, 2021: 405)

  However, I would add a further point not identified in the research. In Australia it is estimated that perhaps as much as 50 per cent of law graduates will not practise law but will take up other careers. This means law schools which offer restorative justice programmes are actually providing an understanding of the tools and benefits to a cohort far greater than the pool of practising lawyers. This also means law schools could offer benefits which extend to a very broad group in business, other professions, government and the not-for-profit sector, since these are the areas in which non-practising lawyers find their careers.

• 3 What are the challenges (with a focus on the Australian environment)?

  Australia-wide initiatives in restorative justice abound, appear to be growing and are easy to locate;¹x See, for example, the Australian Association for Restorative Justice on https://www.aarj.org.au/. but surprisingly only a handful of the 44 Australian law schools have chosen to reflect this in their curricula, as seen in Table 1 below.

  Table 1 Restorative justice courses at Australian universities

  University	Law courses on restorative justice (explicitly referenced in the name or description)	Law courses on restorative justice (course description includes restorative justice-adjacent content)	Non-law courses
  University of Melbourne	-	LAWS50034: Criminal Law and Procedure LAWS90136: Criminal Institutions	CRIM90019: Advances in Criminological Research
  Monash University	LAW5462: Non-adversarial practice	LAW4332: Criminal law and Procedure (No.2)	ATS2469: Victims, Justice and the Law
  University of Sydney		LAWS6193: Criminal Justice: Prevention and Control	PACS6902: Reconciliation and Conflict Transformation
  Australian National University	-	LAWS4314: Sentencing	REGN8005: Restorative Justice in the World CRIM1002: Criminological Perspectives: Understanding Crime
  The University of Queensland	-	LAWS5171: Advanced Crime and Criminology	CRIM2011: Crime, Victims and Justice (last offered in 2018)
  University of New South Wales	LAWS8117: Critical Issues in Restorative Justice (last offered in 2022)	LAWS1021: Crime and the Criminal Process	CRIM3019: Restorative Justice
  University of Adelaide	LAW3520: Sentencing and Criminal Justice (last offered in 2021)	–	JUST3003: Restorative Justice (no longer offered)
  The University of Western Australia	–	–	–
  University of Technology, Sydney	–	–	–
  Macquarie University	LAWS2050: Crime, Policy and Governance	–	–

  Many of the key points made by Mannozzi are relevant here, particularly the academic attachment to black letter law and the reluctance to add to the curriculum anything that can be labelled as ‘skills’. ‘The primacy of the adversarial method remains the core philosophy behind legal education’ (King, 2008: 1124).
  In Australia, there are also some further challenges worth exploring. An accurate description is that ‘law schools’ overemphasis on doctrine and the adversarial trial model has created a growing gap between what law students learn and what lawyers do (Vedananda, 2020: 97).

  3.1 Constraints on the Australia curriculum are imposed by The Priestley 11²x The Priestley 11 are a set of eleven law subjects required to be completed for admission into practice as a legal practitioner in Australia A law degree or diploma will be recognised as a qualification for admission to practice in Australia only if every student has completed all of these subjects. Law schools call these ‘Core Subjects’. The list comprises Administrative Law, Civil Procedure, Company Law, Contracts, Criminal Law and Procedure, Equity (including Trusts), Ethics and Professional Responsibility, Evidence, Federal and State Constitutional Law, Property and Torts.

  All law schools must offer these eleven subjects, and many schools have expanded some of the eleven into two or three subjects. Whilst this still leaves approximately 21 subjects, many law schools have added their own further compulsory subjects. For the remaining subjects (21 or less) law schools already have a curriculum full of established courses and are very reluctant to abandon a subject in favour of a new one without substantial pressure from students, law firms or regulators.

  3.2 Australian law firms prioritise profitability in developing their offerings

  The Australian Financial Review and other publications regularly produce surveys ranking law firm profits and growth, promoting an environment in which the biggest and most profitable ones are seen as the best.
  So while the Australian Bureau of Statistics reveals law firms have a growth rate over the last ten years which is 39 per cent higher than the overall rate for Australian businesses, the growth has not been evenly distributed across all practice areas. The survey results reveal commercial law (including commercial litigation and class actions) as the big growth areas.
  An internet search makes it clear that while there are many firms (although overall still a minority of firms) offering criminal law services, the marketing focus seems directed to the more profitable area of white-collar crime. It is a rare law firm which has any mention of restorative justice on its website. The message is that law firms do not see this as a profitable area in terms of fee-paying clients. There is no evidence that the bulk of the profession sees value in how restorative justice builds significant social capital through healing, accountability and restoration of relationships. Nor that it might significantly alter the trust and confidence in the justice system, which itself could be a source of significant value to lawyers. It might be a factor in overcoming what Mannozzi refers to as ‘suspicion towards the role of lawyers’.
  King argues that law schools are uniquely qualified to play a role in promoting restorative justice programmes to teach students important skills about communicating, mediating conflict, and promoting community engagement. The community will benefit from the healing of conflict. Most importantly, law students who participate in these programmes will learn new conflict resolution skills to employ when they become practising lawyers. Law students will have the opportunity to help real people experience healing and perhaps also achieve a measure of justice (King, 2007: 1297-1302). Unless lawyers begin to recognise this non-fee value, there will not be pressure on universities from law firms to add restorative justice to the curriculum.

  3.3 The lack of a holistic and integrated approach to curriculum design

  In the ideal law school, the curriculum would connect the dots that represent the disparate parts of law and legal practice. It would mean that students in my conflict resolution class would be able to draw on principles of contract law (which they currently study three years earlier) to identify the requirements needed to make a settlement agreement enforceable. At the moment, once the course is completed, their Principles of Contract notes are consigned to another planet, not seen as relevant to any other area of legal practice. They are surprised when I explain the relevance and the connection.
  The absence of a holistic approach fosters an emphasis on black letter law in general and litigation in particular. It has promoted language such as Alternative Dispute Resolution (ADR), the name instilling the view that non-adjudicative processes are not mainstream and belong in an alternative universe.
  To overcome this challenge, we need to do two things. We need to create a holistic curriculum, and we need it to showcase where restorative justice fits and why. ‘Legal education needs to inculcate the new consensus-building framework of lawyering into law curricula, and provide students with the relevant knowledge and skills set’ (Gutman, 2009: 51).
  This curriculum would explore the range of processes available on the dispute resolution continuum starting with avoidance and ending with litigation. It would take restorative justice out of the criminology box where universities often deposit it. It would showcase valuable processes outside the realm of black letter law (such as negotiation, mediation and facilitation) and provide connections to many other relevant fields such as ethics. It would move student thinking from either/or to and/and/and. It would encourage students who become lawyers to consider, with each new case, what is the situation-specific process and approach that will produce the best outcome.
  Mannozzi’s article makes the point that ‘legal education appears to be in a constant tension between tradition and innovation’ (this issue). In the world I experience, tradition consistently emerges as the winner. We need to help restorative justice to find its place in a curriculum that ‘connects the dots’.

  3.4 Analyses of the implementation and operation of restorative justice processes in Australia have faced some quite serious criticism³x See, for example, https://www.aic.gov.au/sites/default/files/2020-05/rpp127.pdf, a report produced for the Australian Institute of Criminology in 2014 (in particular, 29-34).

  Some criticisms have prompted changes. For example, programmes that once focused only on youth offending have been expanded to include adult offenders, shifting the mindset from ‘it’s too late for adults to turn their lives around’ to adopting the New Zealand model which has included adults since 1994. However, other criticisms appear to remain unresolved, including whether restorative justice has a role in resolving gendered violence. We are also struggling to identify the appropriateness and effectiveness of restorative justice in ethnic communities and in our Indigenous community which has more than 250 Indigenous languages and around 800 dialects.⁴x See https://aiatsis.gov.au/explore/map-indigenous-australia.
  Successive governments with very different views of the law-and-order regime have also played a role in limiting the upscaling of pilot programmes.⁵x Australian Institute of Criminology, https://www.aic.gov.au/sites/default/files/2020-05/rpp127.pdf (29). The impact of this is likely to be twofold. Those who refer offenders to pilot programmes may develop cynicism about the commitment of the justice system to the principles of restorative justice, and law schools may see the lack of follow-through as evidence that restorative justice is not a mainstream force that deserves a place in the curriculum.

• 4 Best practice

  I am not well-qualified to comment from personal experience. However, a good foundation can be found in the report by the Australian Law Reform Commission (ALRC). Referencing the important work of the American MacCrate Report,⁶x American Bar Association Legal Education and Professional Development, An Educational Continuum (Report of the Task Force on Law Schools and the Profession: Narrowing the Gap) (1992) cited in Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System Report, 89 (2000) [2.20] and [2.21]. the ALRC recommended that universities add to the teaching of substantive law education which involves ‘the development of high level professional skills and a deep appreciation of ethical standards’.⁷x Ibid. [2.89]. Further encouraging the U.S. work, the Carnegie Report and the Best practices for Legal Education publication followed (Stuckey et al., 2007; Sullivan, Colby, Wegner, Bond & Shulman, 2007). Some Australian legal academics were enthusiastic about this direction (Gutman, 2009: 29-51). However, there does not seem to have been an ongoing rush of enthusiasm from legal academics and law schools to keep this momentum and devote more of the curriculum to what can still be heard described pejoratively as ‘skills’.

• 5 Innovation and the future

  In my view, one of the challenges for restorative justice is its title and the message that communicates. ‘Justice’ immediately suggests that the practice is limited to situations where the justice system is in play. In my view, this is a very serious limitation.
  In their important work, Marder and Wexler join restorative justice and therapeutic justice and explore their relationship as they advocate ways ‘to move [the] ideas from the margins to the mainstream’ (Marder & Wexler, 2021: 403). Their argument about the need for international and interdisciplinary collaboration is compelling and important. I would like us to be bolder. This is certainly a great place to start; however, one of the ways to embed this work deeply and sustainably into the mainstream of teaching at universities in general and law schools in particular is to create a name that has a broader reach.
  My ambition is that, through the kind of collaboration Marder and Wexler advocate so effectively, we might create a field that we call restorative practice. Of course, restorative practice is not a new field, but it is new to law schools. The kind of ‘restorative pedagogy’ and cross-disciplinary collaboration that Marder speaks of in his commentary has not yet arrived there. Law schools have shown considerable reluctance to embrace forms of conflict resolution where there is not a cause of action or consequence attached to the justice system. The result is that where the restorative field has been embraced by law schools it has usually been limited to the field of Restorative Justice or perhaps Therapeutic Justice, leaving the non-judicial remainder of the field to other university faculties such as criminology.
  I am advocating for law schools to demonstrate a greater curiosity and willingness to explore the value of the broad church of restorative practice; to seize the opportunity to create lawyers with a more three-dimensional approach whose reputation and perceived value to their clients and the community are significantly enhanced.
  This project has provoked me to think deeply about a field in which I had already begun to seek a deeper engagement. I plan to do some further training to identify how I can enhance the way I model restorative practice to my students and my colleagues. I also plan to approach colleagues in this field to collaborate with me as I expand the experiential tools I use with my students. A truly valuable exercise.

References

• Gutman, J. (2009). The reality of non-adversarial justice: principles and practice. Deakin Law Review, 14(1), 29-51. doi: 10.21153/dlr2009vol14no1art130.

• King, M. (2008). Restorative justice, therapeutic jurisprudence and the rise of emotionally intelligent justice. Melbourne University Law Review, 32(1), 1096-1126.

• King, R. (2007). Restorative justice: how law schools can help heal their communities. Howard University School of Law, 34(4), 1285-1302.

• Marder, I. & Wexler, D. (2021). Mainstreaming restorative justice and therapeutic jurisprudence through higher education. University of Baltimore Law Review, 50(3), 399-423.

• Stuckey, R. et al. (2007). Best practices for legal education. Columbia: Clinical Legal Education Association.

• Sullivan, W., Colby, A., Wegner J. W., Bond, L. & Schulman, L. (2007). Educating lawyers: preparation for the profession of law. San Francisco: John Wiley & Sons, Inc.

• Vedananda, N. (2020). Learning to heal: integrating restorative justice into legal education. New York Law School Law Review, 64(1), 95-113.

Noten

• 1 See, for example, the Australian Association for Restorative Justice on https://www.aarj.org.au/.

• 2 The Priestley 11 are a set of eleven law subjects required to be completed for admission into practice as a legal practitioner in Australia A law degree or diploma will be recognised as a qualification for admission to practice in Australia only if every student has completed all of these subjects. Law schools call these ‘Core Subjects’. The list comprises Administrative Law, Civil Procedure, Company Law, Contracts, Criminal Law and Procedure, Equity (including Trusts), Ethics and Professional Responsibility, Evidence, Federal and State Constitutional Law, Property and Torts.

• 3 See, for example, https://www.aic.gov.au/sites/default/files/2020-05/rpp127.pdf, a report produced for the Australian Institute of Criminology in 2014 (in particular, 29-34).

• 4 See https://aiatsis.gov.au/explore/map-indigenous-australia.

• 5 Australian Institute of Criminology, https://www.aic.gov.au/sites/default/files/2020-05/rpp127.pdf (29).

• 6 American Bar Association Legal Education and Professional Development, An Educational Continuum (Report of the Task Force on Law Schools and the Profession: Narrowing the Gap) (1992) cited in Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System Report, 89 (2000) [2.20] and [2.21].

• 7 Ibid. [2.89].