Charity Scott

Alternative dispute resolution (ADR) is beginning to gain ground in health care settings, especially (but not only) in medical malpractice cases. Concerns about litigation costs, uncertain potential liability exposure, and the sheer emotional and time-consuming drain of litigation are among the chief reasons for this positive trend. Why is ADR such a new development for resolving conflicts in health care settings, and will this trend continue?

I fear that one of the biggest hurdles to our society’s pervasive adoption of alternative, non-litigation forms of conflict resolution, whether in health care settings or elsewhere, is our traditional model of legal education. I can say that – I’m a law professor in a law school that adopts the traditional approach to legal education, which is very similar to the one I received 25 years ago, which in turn was very similar to the legal education that my father and grandfather (also law professors) were given, and which is pretty much the same as the one that my son is getting today. Passing the torch of tradition across the generations is deeply ingrained in legal education.

What values are passed along in this way to every new generation of lawyers? In law school we stress that our profession works in an adversarial system. For the better half of a law school education, we emphasize law as litigation. All during the first year, students learn the law almost exclusively through litigated cases on appeal. The traditional common law courses (torts, contracts, property) and civil procedure (covering the trial and appellate processes) are all full-year courses, day in and day out, from August to May. In the spring term of their first year, law students are required to participate in an intense moot court competition whose final rounds are judged by some of the finest jurists in the State. The highest achievement in the first year of law school – besides getting the A’s needed for Law Review – is winning this moot court competition.

Continuing into the second and third year of law school, we require students to take a class in litigation and trial skills, as well as a course on the rules of evidence. Even our students’ extra-curricular activities are predominantly litigation-oriented: we send mock trial teams and appellate moot court teams to competitions all around the country. And let the record reflect that we teach the law through litigation and appellate advocacy very well – our students have a stellar track record at these competitions, and they pass the bar exam at often the highest rates in the State.

Many of my students tell me, by the way, that their families encouraged them to go to law school because they were always arguing.

What classes we do not require our students to take is instructive for what that reveals about the values we are imparting to them as professionals. We do not require that they take a course on alternative dispute resolution. We do not require that they take a class on interviewing and counseling clients. We do not require any competency in negotiation skills. Our law students could graduate from law school without any familiarity with different, non-litigation ways of resolving conflicts, such as mediation or early-intervention conflict management. Our law graduates will face conflict situations when they enter legal practice, but most will deal with them without the benefit of current knowledge about the nature of conflict resolution. Our graduates will certainly address problems, but most of them without having had an educational opportunity for problem-based learning. Nearly all of our law graduates will counsel clients without any formal training in listening and communication skills. They will pick up these alternative skills on the job, relying on their intuition, some basic critical-thinking skills that they honed in law school, and if they are lucky, some good coaching by senior attorneys.

And by that point, when our law students enter legal practice, their intuitions about resolving conflicts will have been framed by a litigation approach. Litigation is the norm; other forms of problem-solving and conflict resolution are so-called alternatives.

What does that say about the values we are imparting to our future professionals? There is an old saying, that if the only tool you have is a hammer, every problem tends to look like a nail. If we equip our students predominantly with litigation skills, is it any wonder that they predominantly utilize those skills in practice? And I can point the finger here – I was a litigator before I became a law professor.

Legal education stresses the role of lawyers as advocates, even zealous advocates, and downplays the equally important and historical role of lawyers as counselors (as in, “counselor-at-law”). People come to lawyers to help solve their problems, much as they come to doctors to help cure their illnesses.  Clients, like patients, would likely prefer the easiest, cheapest, and most minimal intervention possible to get the job done – yet they are often trusting enough to assume that whatever the lawyer or doctor recommends as the best approach is the right one – after all, that’s why they went to an expert. The surgeon will likely consult his toolkit and recommend surgery. And the lawyer will likely frame the client’s problem or conflict in terms of its potential for litigation which, directly or indirectly, will shape the course of its resolution.

This picture is changing, if not yet in law schools, at least in legal practice. Mediation is on the rise. New regulations and laws promote alternative approaches to addressing problems in health care settings. In contrast to the typical legal advice to say nothing after an accident, the Joint Commission on Accreditation of Healthcare Organizations now requires physicians to disclose adverse outcomes to patients and their families. In order to encourage such behavior, Georgia law now protects apologies and other expressions of sympathy after a medical event from being admitted into evidence in litigation. Studies continue to demonstrate the powerful, positive effects that open communication and apologies, where appropriate, have on the resolution of potential malpractice claims, as well as on the psychological well-being of all the affected parties.

How should we – as legal practitioners and as legal educators – help to promote this positive trend?  As an educator, of course, I tend to consult my own toolkit and see most issues as best addressed through education. That being said, I think that we should be taking advantage of more opportunities to engage the ADR community with the health law community. We could begin to offer Continuing Legal Education programs that tailor the new learning in conflict resolution to the issues that arise in health care settings. We could set up a program or institute that begins to do empirical research into what actually works in health care settings to resolve conflicts smoothly and why it works. Above all, we could begin to examine how our law schools could mainstream these alternative ideas into the core of what our students learn.