Australian Law Schools, Collaborative Practice and the Future of Lawyering
Charissa Tarzia, Lecturer, Flinders University
Abstract
If law schools continue to focus on developing adversarial skills and refer to other skills as “alternatives,”, the bias towards traditional models of what lawyers do and how client problems are resolved will perpetuate. Future lawyers need to graduate law school with a toolkit that extends beyond the traditional adversarial skills if they are to forge a career that can co-exist and benefit from emerging legal technologies. 1 A lawyer who has empathy and emotional intelligence and who can communicate constructively and with the purpose of advancing a matter to resolution while advocating for their client has powerful skills. 2 It is these human skills that are most likely to complement effective use of legal technology and safeguard the future lawyer’s relevance. 3 Further, the knowledge and skills necessary for success in collaborative practice are applicable in any negotiation context, irrespective of whether students choose to practise law or not.
This presentation investigates collaborative practice as part of professional capability of the future of lawyering in Australia. At the core of this presentation is the question: how can law schools incorporate the principles of collaborative practice to best prepare students to become lawyers who can advocate in multi-disciplinary settings, be outcome focussed and are equipped with the human skills to buffer the rise and impact of technology on legal practice. This presentation draws on mixed method research conducted by the author (empirical and doctrinal. Evidence to support the arguments of this study will, partly, be based on interviews with collaboratively trained legal practitioners that the author has already conducted but, its results, have not yet been published elsewhere. The interviews highlighted some advantages of the collaborative practice approach, including improved client management, effective use of neutral experts, more practical and lasting outcomes for clients, the scope for practitioner mentoring and skill development and the overall change in how collaboratively trained lawyers approach the adversarial process. Challenges included costs, management of positional clients or lawyers, and finding the balance to ensure the matter proceeds at a pace both clients are satisfied with.
The presentation will argue that although collaborative law or collaborative practice, defined as agreement to work together and use a cooperative process rather than adversarial strategies and litigation to resolve conflict, 4 has its roots in family law, the underpinning principles are more broadly applicable to developing holistic, outcome-driven lawyers who can combat the long delays and excessive costs of the adversarial system 5 and achieve greater equity and social justice outcomes in the civil legal system. 6 Those without collaborative practitioner accreditation will not offer it to their clients, so it is currently left to clients to seek it as an option for themselves. The presentation concludes that rather than being seen as an “alternative” and an elective that only some students may choose, the principles of collaborative practice have relevance and benefit to all law students and should be taught consistently throughout the law degree. 7