Today’s edition features Bob Dauber’s (Arizona State) assessment of the negotiation course he taught this summer and plans for his evidence course this fall.

Evidence Course

Bob wrote, “I recently started teaching evidence in the fall semester.  I usually have over 90 students in that class, and I offer them an extra credit assignment:  to observe a judicial proceeding in which evidence is introduced or addressed (typically a hearing or a segment of a trial) and write a very short (1-2 page) reflective essay about the observation.  It just occurred to me that this might fit the broad Stone Soup criteria. I plan to do that this fall.  Last year (my first crack at this assignment), over 60 students participated.”

Here’s the description from his syllabus of the extra credit assignment for court observation:

“You may earn up to three extra points by observing an evidentiary issue addressed in a judicial proceeding and writing a short paper about what you observed.  To earn the credits, you are expected to observe either a “motion in limine” hearing or a one-hour (or more) segment of an evidentiary hearing or trial, followed by a 1-page reflective memo about your experience.  These options will be addressed in the first class.  Only one memo may be submitted for extra credit points during the semester, though you are encouraged to observe several proceedings so that you can notice similarities and differences in how the rules of evidence are applied (or not) in real cases.”

Negotiation Course

Bob taught negotiation this summer and here is his assessment, with his assignment included at the end of the document.  Students interviewed experienced negotiators, all but one of whom were lawyers.  Students were assigned to ask about their strategies, actions, and reflections.  Many subjects said that they used competitive tactics, which was somewhat of a “disconnect” from the material covered in the course.

Bob and I noted that his class’s interviews contrasted with those in Charity Scott’s class, in which most negotiators reported using a problem-solving approach.  Of course, these two separate assignments were for teaching purposes, not a single research project.  So the different “findings” might be due to differences in the design and implementation of the assignments.  For example, differences in the set of subjects interviewed and the questions asked could account for the different descriptions of negotiation approaches.  In the future, faculty at different schools may want to collaborate by using the same or related assignments to consider possible differences in local practice culture.

Lessons for Designing Assignments

These two different course experiences suggest some things to consider in designing assignments.  Both assignments focused on general approaches rather than specific cases.  It is understandable that faculty would want students to ask about these generalizations, though they are particularly prone to imprecise questions and answers.

The differences may be due, in part, to the fact that many of our fundamental theoretical conceptions are confused, to say the least.  For example, in my study based on interviews with 32 lawyers about the most recent case they settled, I found that the traditional two-model system of negotiation theory (e.g., problem-solving and adversarial, among numerous other names) were defined inconsistently in negotiation texts and did not fit many of the cases described in my interviews.  Based on the theoretical definitions and these interviews, I developed a framework using clearer and more concrete concepts.

Similarly, the theoretical concepts of facilitative and evaluative mediation also are quite muddled.  The ABA Section of Dispute Resolution’s Task Force on Improving Mediation Quality surveyed civil mediation users (almost all of whom were litigators) and mediators and found that both groups had varying attitudes about different behaviors comprising “evaluative” mediation, as shown in the following table.  (Here’s a link to a short article describing the Task Force study.)

While the traditional theoretical concepts are seductively simple to teach, I think we do a disservice to our students when we equip them only with these confusing concepts (which generally aren’t used much in practice anyway).  Stone Soup assignments and activities provide opportunities to get more concrete and realistic understandings of what actually happens in practice – and how this does or doesn’t relate to our theories.

Charity’s and Bob’s contrasting experiences lead me to highlight several things that I think would produce more accurate understandings.

• If students conduct interviews, it is good to ask about entire cases.  If students ask about general approaches or issues, they should ask subjects to illustrate them with particular cases as specifically as possible, perhaps using elements of the preceding tables.
• When conducting interviews, students should use plain English and avoid dispute resolution terminology.  We experts can’t agree what these concepts mean, and it will confuse rather than clarify things to use these terms.  This is especially appropriate since many subjects won’t be familiar with them or will have different understandings of the terms themselves.
• When analyzing interviews and observations, however, it would be appropriate for students to compare their observations with material covered in the course.  Since the goal is to compare theory with practice, students should try to be truly open-minded about whether the subjects’ accounts fit the theory – and not simply try to “find” that the subjects’ experiences do fit the theory.
• Although it is tempting for students to ask about unusual cases (e.g., surprising or particularly successful or unsuccessful cases), these cases are atypical, by definition.  If students do ask about atypical cases, they should ask how they compare with more typical cases.  One way to reduce this problem is to have students ask about the most recent case that fits your criteria.
• Generally, it is best to start with open questions and avoid leading questions that may bias subjects to agree with the implication of the questions.  Avoiding this bias is another reason for students to refrain from discussing material covered in the course when conducting interviews.

Of course, using these techniques would not necessarily explain differences in observations like Charity’s and Bob’s, but they should help reduce possible confusion.

Thanks for sharing, Bob.

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