Some questions for law professors: Why did you go to law school? Why did you decide to go into academia? What do you want to accomplish in your work? What do you hope for your students?
In this post, I give my answers to these questions, which I think will resonate for many readers of this blog.
Then I provide extended excerpts of a great new article that ties together many of these concerns and provides a deeper rationale for the Stone Soup Project. The article is Michèle M. Leering, Enhancing the Legal Profession’s Capacity for Innovation: The Promise of Reflective Practice and Action Research for Increasing Access to Justice, 34 Windsor Yearbook of Access to Justice 189 (2017). (Stone Souper Martha Simmons is one of the guest editors of the special issue in which this article appears – Innovation and Access to Justice: Addressing the Challenge of a Diverse Justice Ecosystem.)
Finally, I offer some suggestions about how you can apply insights from Michèle’s article by using Stone Soup class assignments to produce practical action research, which may help you achieve some of your most important academic aspirations.
This post is longer than usual. But you might find it really useful to read it all.
Our Hopes and Dreams
Many pioneers in our dispute resolution community came out of the legal services and public interest law movements of the 1960s and 70s. Coming of age in that era, I too was deeply concerned about social injustice. I hoped that legal education would equip me to make a difference. I appreciated that adversarial struggle, including litigation, was necessary to promote positive social change. But I also recognized limitations of that approach and I aspired to a world in which citizens would be able to make progress through mutual respect and democratic cooperation.
In 1982, I took my first mediation training and opened a law and mediation practice. In 1984, I published Mediation Paradigms and Professional Identities, subtitled “Can We Activate a New Movement for Justice?” We have come a long way since then, making progress and also recognizing limitations of our dispute resolution movement. Along the way, I got a doctorate in sociology and appreciated the potential of social science research to contribute to social progress, which has informed my efforts to develop the Stone Soup Project.
I think that most of us in today’s dispute resolution world share values of the progressive public interest movement (some of which I listed here). In particular, while the public interest movement has focused on helping and empowering the have-nots in society, the dispute resolution movement has promoted procedures protecting weaker parties so that their counterparts do not take unfair advantage of imbalances of power.
We are an idealistic bunch, wanting to make the world better. And many of our students feel the same way (at least when they start law school, before they assimilate adversarial legal culture and get weighed down by heavy student loan debt).
So we hope to inspire our students to maintain good values and prepare them to do good deeds as they embark in the world as professionals.
Michèle Leering’s Must-Read Article
I was so excited to read Michèle Leering’s article, which pulls together many strands in my professional life. It provides a roadmap for a next step in the Stone Soup Project for those whom it inspires.
Since 1985, Michèle has been the executive director of the Community Advocacy and Legal Centre in Ontario, Canada. She also is a PhD candidate at Queens University Faculty of Law in Canada.
Here are extended excerpts from her article (without footnotes), starting with the abstract:
“Recent national reports have documented growing justice gaps in Canada and have identified a compelling need for innovation in the justice sector to better meet the needs of the public. Nurturing a greater capacity for individual, collective, and critical reflection will ensure the legal profession is much better equipped to respond creatively and strategically to a lack of equal access to justice.
“In this article, I explore the generative and transformative potential of reflective practice–an important professional competency in other professional disciplines, but under-theorized in law, and action research–a dynamic and flexible form of qualitative research for supporting a culture of innovation in the legal profession and the justice system. Reflective capacity is a crucial enabler of innovative thinking, and it undergirds approaches to encouraging individual and systems change emerging from the organizational learning and innovation literature. An enhanced capacity for reflection will also support more generative and “future-forming” dialogues within the profession and between justice system stakeholders.
“Furthermore, systematically reflecting on disorienting empirical data about the troubling state of access to justice could develop an “access to justice consciousness” in law students and legal professionals, leading to a stronger willingness to take action to narrow the justice gaps. Introducing action research as an unpretentious and effective enabler of profound transformation and innovation in individual and organizational practices offers significant promise for tackling the “wicked problem” of access to justice. Practical illustrations of action research as an enabler of innovation drawn from legal practice are provided.” (p. 189)
“This article explores the promise that “reflective practice” and “action research” offer for fostering a culture of innovation in the legal profession and the justice sector. I believe that cultivating reflective practice beginning in law school and encouraging legal professionals and the organizations they work for to use action research strategies will synergistically contribute to a more reform-oriented and responsive legal culture and justice system. “Legal professionals” is inclusively defined here to include law students, legal educators, lawyers, judges, policy-makers, mediators, government and court staff, and other legal practitioners. Each of these justice sector roles shares a common professional interest and responsibility to ensure equal access to justice and to create a more just society through the rule of law. Regardless of the specific professional role, engaging in reflective practice and action research encourages curiosity, open-mindedness, innovative thinking, and experimentation and will be transformative for all roles.” (p. 191)
‘The context and the imperative for action are crucial–two influential national reports have encouraged the profession to respond urgently and strategically to the unmet “everyday legal problems” of Canadians, to the growing justice gaps, and to a documented lack of equal justice. Legal professionals need new skills and capacities to respond to the emerging empirical research about unmet legal needs and the “law as lived” and a predicted future “unrelenting, dynamic and transformative change” for the profession. The Action Committee insists that “[a] new way of thinking–a culture shift–is required to move away from old patterns and old approaches” to support a new culture of reform. Six guiding principles are offered for shifting “professional consciousness”: “put the public first”; “collaborate and coordinate”; “prevent and eradicate”; simplify the justice system; “take action”; and “focus on outcomes.” (p. 192)
Part II of the article provides a useful review of reflective practice, which I omit here for space reasons, except the following passage. “At its most fundamental level, reflective practice requires skills in self-assessment–in the spirit of continually improving practice–to ensure one becomes a more proficient legal professional. However, this is only the beginning; this minimum standard is then enriched by adding critical reflection of all kinds (on assumptions, on practice, on law, on justice, on “law as lived,” on what constitutes legal knowledge), and self-reflection. Integrating the insights gained from these reflective domains leads to further insight and richer professional knowledge. The capacity to reflect collectively with peers, colleagues, and others increases the rigour of reflection, interrogates assumptions, and supports learning from others. It also builds the capacity for generative dialogue to create new knowledge and envision new possibilities: this capacity is crucial for tackling access to justice challenges.” (p. 198)
Legal educators should particularly read Part II.D: Introducing Reflective Practice into Legal Education. (pp. 205-209)
While many readers of this blog may be familiar with reflective practice, probably few know about action research, the subject of Part III. “Action research is a form of research that is used when there is a desire to improve practice and/or to create change with organizations or systems. Using largely qualitative data collection methods, it is well suited to situations where little is understood about the problem or the lived experience. Action researchers are usually trying to solve a practical problem rather than studying a phenomenon in the abstract, as is the case when more conventional quantitative and qualitative research methodologies are employed. Largely described as an inductive research strategy, action research is used to develop knowledge and theory while simultaneously supporting change. It results in a richer, deeper, and more multifaceted understanding of the issue being examined by the research, creating situated knowledge about the challenge being faced. It is ideally suited for supporting innovation in the access to justice sector because it encourages reflection and action in a cyclical process that incrementally and iteratively begins to change the situation while it is being researched. This characteristic of action research–that solutions are implemented as the research proceeds–helps to overcome the challenge of getting started on complex problems that initially seem insurmountable. Some forms of action research, such as participatory action research, pay special attention to incorporating the interests and perspectives of stakeholders concerned about the issue throughout the research, including the people it intends to benefit.” (pp. 209-210)
Michèle quotes Morten Levin and Davydd Greenwood: “[a]ction research embodies the principles of pragmatism applied to research and social change. It is knowledge creation, reflection and application in action. It is a quintessentially scientific activity because we test the validity of our understandings in action. On the surface of it, then, action research should be the dominant form of social science inquiry at colleges and universities and in governmental agencies, at least all of those that claim to create knowledge relevant to improving our societies.” (p. 211)
“Most importantly, undertaking action research does not necessarily require specialized expertise, which makes it very accessible to legal professionals.” (p. 212) This is my point in What Me–A Social Scientist?
“To illustrate simply how an action research process evolves, I provide an overview of practical steps for a small-scale group or individual action research project to improve practice. This process applies whether the desired change is to legal practice, law teaching, or to innovating within an organization or system. Action research usually starts from a sense of a practical problem. A crucial first step is framing (and reframing) the problem or issue to be explored. A specific research question might be posed. The next step is a discovery stage and involves collecting data about the problem to increase understanding. There are different ways to collect the data depending on the issue: qualitative and quantitative surveys, interviews and focus groups, observational research, and reviewing relevant articles, reports, studies, case files, statistics, or other appropriate documentation may be appropriate to investigate the issue.” (p. 213)
Michèle then describes how her clinic “has used action research internally to improve and diversify the delivery of legal services and externally to engage our local community in tackling complex human rights issues that manifest as hunger, poverty, and a lack of affordable housing. More recently, this approach has been used in joint projects to increase access to justice with community organizations, other [community legal clinics], and Legal Aid Ontario.” (p. 214)
She concludes: “What next steps could be taken to realize the promise of reflective practice and action research as enablers of innovation? Recognizing reflective practice as a core competency for legal professionals will help shift our professional culture as well as embed expectations of disciplined reflection in our workplaces. Encouraging educators at every stage of professional legal education to use, endorse, promote, and “teach” these viable and unpretentious strategies at appropriate stages on the legal education continuum will increase their acceptance and uptake. To increase the willingness of legal professionals to engage in action research, a pragmatic approach to build this form of research would be to create succinct resource kits unique to legal education, the legal profession, and the justice sector needs.” (p. 221)
How You Can Use Stone Soup Action Research in Your Courses
Michèle’s ideas combine theory, empirical research, teaching, legal practice, and social action. Stone Soup is the kind of “resource kit” that she describes. Here I spin out a few examples of how our community can apply her ideas with a particular dispute resolution focus.
We can constitute our classes as action research teams (along with all the other things we do in our courses). Faculty can define the research questions (as Doug Yarn did in his mediation course, focusing on mediators’ case prediction behavior), students can define the questions (as Fran Tetunic’s class did following a mediation training unit), or faculty can arrange to do participatory action research, in which the stakeholders participate in the process of defining the research questions. Generally, faculty would plan to complete each research project within a single semester, though we could conduct larger projects in which a class continues the work of its predecessors (similar to the process in some clinical courses).
Some research projects could be designed to contribute to institutional development while others would analyze practice problems or focus on theoretical questions. In our field, we think of institutional development as dispute system design (DSD) and we could take advantage of the experiences of our colleagues who have taught DSD.
Examples of Dispute System Design Studies
As an example of a potential DSD focus, some classes could study problems that their local courts have in dealing with self-represented litigants (which I noted in a recent post). Different students in a class could be assigned to interview a range of stakeholders (such as judges, lawyers, court administrators, and social service providers, among others) and observe court proceedings.
Another example would focus on an organization’s system for handling employment complaints. As has become particularly evident in recent weeks, many organizations throughout US society have been embarrassed because of their poor handling of sexual misconduct complaints. So a class might interview plaintiff and defense lawyers, human resources professionals, managers, judges, or other professionals about their perceptions of how the systems work and how they might be improved. A class might focus on a single organization or a number of organizations in an area.
Many of us are concerned about problems due to binding pre-dispute arbitration agreements, especially those with class action waivers. So an arbitration class might conduct interviews with lawyers, arbitrators, officials of organizations providing arbitration, judges, etc.
Projects like these would require cooperation of host institutions, which may be easy or hard to get in particular situations. For example, many courts would welcome your help in figuring out what to do about self-represented litigants. This is a huge problem for many courts and they have limited resources to do this kind of action research.
By contrast, many organizations would be wary about having students study their internal dispute resolution procedures for handing employment complaints (especially for sensitive matters like sexual misconduct). However, some enlightened organizations might really welcome this opportunity for an external (and confidential) analysis and recommendations.
Some faculty may want to use action projects in their class that don’t necessarily benefit disadvantaged populations. It would be great, for example, if a class wanted to consult with businesses about potential benefits of planned early dispute resolution (PEDR). This might involve interviews with a range of stakeholders such as the general counsel, lower-level inside counsel, business managers involved in litigation, top executives including the chief financial officer, and outside counsel who regularly serve the business. Peter Benner and I used this protocol for interviewing fifteen inside counsel in different companies that had adopted PEDR systems and we published the results in Why and How Businesses Use Planned Early Dispute Resolution. For action research projects in a course, it probably would be better to focus on a single business that does not have a PEDR system but might not want to continue their process of litigation as usual. For ideas of some questions students might ask various stakeholders, see pp. 3-4 of the ABA Section of Dispute Resolution’s User Guide for Planned Early Dispute Resolution.
Ideally, researchers would interview parties in addition to professionals. This presents significant ethical and practical difficulties, however, so you generally would not include parties as research subjects. Interviewing parties is possible, though you would need to undertake some additional, rigorous procedures.
Theoretical and Practical Problems
We all know that people sometimes don’t follow the theories we teach – though sometimes they do. That’s what we have heard from colleagues whose students have done Stone Soup assignments. Indeed, a major purpose of the Stone Soup Project is to have students inquire about the extent to which people do and don’t follow our theories. In particular, it is useful to theorize about the circumstances under which people deviate from our theories.
The recent ABA report on mediator techniques provides a good example of our theoretical problems. After four decades of research, we don’t have consistent, robust findings about the effects of what we have theorized as “evaluative” mediation. First, “it” isn’t a single phenomenon but rather a set of disparate activities. Second, the fact that research findings have not been consistent, even for many discrete actions, suggests that we need to refine our theories to incorporate significant contextual variables.
As for practical problems, my recent training with Susan Yates identified a number of problems that bedevil lawyers and mediators, particularly dealing with uncooperative and unrealistic lawyers and parties. Wouldn’t it be great for your students to interview lawyers and mediators to learn more about these problems and practitioners’ strategies that have been more and less effective in dealing with them?
A session at the last ABA conference identified a number of practical problems that practitioners wanted academics to help them with. For example, several lawyers wanted help in dealing with their relationships with their clients so that they can manage lawyer-client differences effectively. Wouldn’t that be a wonderful assignment to have students interview lawyers about the difficulties they have in working with clients – and how they have dealt with these problems?
The Kiser et al. study, Let’s Not Make a Deal, replicated findings that lawyers and litigants do an absolutely ghastly job of evaluating cases for trial. The researchers found that in more than 85% of actual cases, one side made a decision error, i.e., it rejected an offer that was more favorable than the ultimate trial outcome. There is a lot to learn about how people evaluate cases to prepare for ADR. I suggested a list of questions about case evaluation that you might assign students to explore in Stone Soup assignments.
These are just a few examples of institutional, theoretical, and practical problems that we could use our classes to study. Our Stone Soup pioneers have demonstrated great creativity in designing their assignments. We certainly could develop many other valuable ideas to study.
To use your classes to conduct action research, you would need to get research projects approved by the ethics research board at your school. This can be a hassle and I plan to write a post with suggestions to make this as easy for you as possible.
If your class undertakes an action research project, it can produce many different products. At minimum, it would generate a good, empirically-informed class discussion. Presumably, all students would write up the results of their research, which could be compiled into a single document. In Doug Yarn’s mediation class, one student was responsible for integrating other students’ reports (though that was an improvised decision to address the fact that her planned interview fell through). So you might plan for some students to act as editors, compiling data into a coherent document. If your class produces a report analyzing the results of your study, presumably it would be distributed to all students as a tangible product of their collective efforts. If appropriate, you could disseminate the report through SSRN and/or other media. If enough colleagues incorporate action research in their courses, your school could develop a reputation for this innovative pedagogical strategy.
In addition (or instead), students could produce valuable practical materials based on their research. For example, students could draft informational brochures to help self-represented litigants navigate the courts. They could prepare materials to be used in trainings of professionals. You could arrange for students to brief stakeholders on the research findings or organize a public conference. Students could make recommendations for development or modification of organizational dispute systems. These are just some of the products you could lead your classes to develop.
From the initial Stone Soup experiments, we know that students generally are quite jazzed by these assignments. They crave learning about the real world and love talking with lawyers and other practitioners.
Imagine how much more excited they would be if they made a positive contribution to society.
And imagine how you would feel if you developed a course that made this happen – and on a regular basis.
If Not Now, When?
At the beginning of the post, I posed questions about legal educators’ own professional goals. Do the ideas in this post touch your deep hopes and dreams? If so, you can realize them through the Stone Soup Project.
I know that it can be hard to make changes in one’s courses, especially if the courses are working well. Making changes takes time and might cause you to discontinue other parts of your course that you think are valuable. Ultimately, it is a question of your priorities – what is most important for you.
It can be tempting to think that this sounds great and you will do it someday. Consider whether that is really likely to happen if you don’t make definite plans to do it soon.
Presumably it is too late to incorporate these ideas into courses for the current semester. But I hope that you will seriously consider doing so next academic year.