Australian law professor teaches mediation at Elon
Legal scholar Judd Epstein, from Monash Law School in Melbourne, Australia, recently visited Elon Law to provide an international perspective on mediation and alternative dispute resolution for third-year law students.
"Professor Epstein's class was a crash course in the theory and practice of mediation,” said Courtney Roller L’13. “We covered a wide array of topics, including court mandated mediation, mediator conduct, confidentiality, neutrality, diversity and various schools of mediation. Our primary focus was on the facilitative model of mediation, which calls for mediators to highlight party’s interests rather than their positions. Through role playing and multiple faux mediations, Professor Epstein guided us toward successful mediation practices while allowing us to incorporate our own style.”
Epstein’s areas of expertise include alternative dispute resolution, comparative law, judicial administration and law relating to road safety. A law professor at Monash since 1972, Epstein has authored or co-authored six books and reports, ten chapters in books or reports, and approximately 40 articles and conference papers. His research is mainly in comparative law, dispute resolution and road safety.
“The fact that Professor Epstein was visiting Elon from Australia was very exciting to us as students,” Roller said. “His international experience allowed him to compare and contrast the American judicial model with the Australian judicial model. This gave us great insight into the universal importance of mediation practices and conceptualized some of the diversity challenges we might have otherwise failed to consider.”
Prior to his return to Australia, Professor Epstein took time to offer some reflections on law and legal education for this report. Our Q&A with Professor Epstein follows:
What are some key differences in the approach to mediation between Australia and the U.S.?
“The differences are not that significant, but, for instance, the state of North Carolina prescribes an awful lot of areas in its statutes and has separate rules for each of the areas, like family law and farm nuisances and other things, whereas in Australia it’s probably more wide based across each of the courts.”
You are active in shaping your law school’s development as a fully international law school. Why is it important to you that law schools have a high level of international exposure?
“To me the world is shrinking. We act globally and it’s something of a restriction if you pretend that you work only within your own community. Even if you do, you’ll find that manufactured products or raw materials are coming in from Latin America, from Asia, and we’re dealing constantly with China now, so I think it’s important for students to have a sense of the globe as well as the North Carolina or the United States law.”
“What I’ve done at Monash is I set up a possibility for students to study law in a lovely Monash facility in Prato, Italy. Rather than create an enclave, we had professors and students coming in from Israel, from Italy, from France, from the United States, from Canada, from the Republic of Georgia, and those professors gave students their perspectives of law. I thought it was very important that they see that the common law is not the only way in which law is conceptualized or practiced.”
Do you advocate for greater use of alternative dispute resolution methods, including mediation, in legal practice?
“I think it is, without my advocacy, definitely a growing area. Alternative dispute resolution has grown for two major reasons and a less major reason as well. First, by dint of the courts having adopted it, and court annexed, court sponsored, court mandated mediation is a feature here in North Carolina, it’s a feature in Europe and it’s a feature in Australia. Almost every case in my jurisdiction has to go to mediation before it will get a judge. The second major way in which it becomes a feature is there is a push throughout the corporate world to try mediation before either arbitration or litigation, so contracts are now written with a dispute resolution clause featuring mediation. And the third way, is many people are now becoming familiar with it through the other two ways and saying, why don’t we give it a go, or jumping before they’re pushed.”
One of your long-standing areas of activity is in promoting road safety through law. What have you learned about the capacity or limits of legal advocacy to improve road safety in Australia?
“It’s a humbling experience. My consultancy is this: I work with the major road authorities, both national and state based within Australia, as well as local government units, and I talk principally to their road and traffic engineers. I talk about legal liability and how to minimize exposure to that risk. I’d like to think that it’s had some impact. Throughout Australia we are very conscious of the road toll (the number of deaths caused annually by road accidents) and injuries and I would say we’re very proactive. We’ve got a system we now call ‘Safe System’ and have really changed things. We have random blood alcohol testing. We have improved seat belts. We have all sorts of things. But there is almost a limit to what you can do. People just sometimes through inadvertence make mistakes. We want the road and the vehicles to be much more forgiving, so the principle is: we know there will still be incidents, collisions on the road. We want you to be able to walk away from it, and this ‘Safe System’ says the road infrastructure ought to be such, combined with the speed limit, that there is no danger of a casualty accident. Of course we haven’t achieved it yet. The thrust for this originally came from the Netherlands and Sweden, and they’ve gotten much closer than us, but our road toll statistics have been falling rapidly. Law plays honestly a subsidiary roll in all this, but I think it’s very important that they are exposed to this, that they are told that pretty soon lawyers are going to ask, my client did everything right, so why does she have brain damage, why is she in a wheel chair. We think that it’s going to have an effect. They are working at it and sometimes you have to lower the speed, which is never popular. Until we can get that road infrastructure right, we have much more forgiving cars now, both in crash avoidance and in crash worthiness, so it’s coming.”
What would you like to share with law students in the U.S. as they prepare for careers as lawyers in the 21st century?
“We are all told to think globally, act locally. It’s an aphorism, but I think it’s one that has some application. Do not confine yourself to a very narrow view, because you’ll find it’s already outdated. Even in smaller cities within this state, new lawyers will find that they’re constantly dealing with products that weren’t made here and that they’re dealing with services that extend beyond state and indeed beyond national borders.”