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Moffitt, M --- "Lights, Camera, Begin Final Exam: Testing What We Teach in Negotiation Courses" [2005] LegEdDig 19; (2005) 13(4) Legal Education Digest 3

Lights, Camera, Begin Final Exam: Testing What We Teach in Negotiation Courses

M Moffitt

[2005] LegEdDig 19; (2005) 13(4) Legal Education Digest 3

54 J Legal Educ 1, 2004, pp 91–114

Students at more and more law schools have the opportunity to study negotiation. Negotiation courses tend overwhelmingly to be aimed at skills development, unlike many traditional components of a law school curriculum. While they vary in their content and in the instruction method, their basic structure is remarkably similar. The vast majority employ a combination of simulated negotiation exercises, in-class reviews, and a relatively modest amount of reading. Because the courses focus largely on skills rather than on information, teachers of negotiation face considerable challenges in constructing a workable, fair and helpful method of assessment and grading. While students in almost all law classes have concerns about the bases for their grades, commonly making accusations of subjectivity, negotiation courses are particularly suspect, not only because their aim is skills development but also because the skill in question has the additional complication of a dynamic counterpart.

Although negotiation courses are similar in their instructional methods and teaching goals, they vary to a surprising degree in assessment mechanisms. Teachers at one school almost never evaluate their negotiation students in the same way as teachers at another school. This article examines six common approaches to grading negotiation courses, identifying important strengths and shortcomings of each method, followed by an alternative assessment mechanism.

Many law schools offer negotiation courses on an ungraded pass/fail basis, which can serve a number of important purposes. First, students may be more inclined to experiment. Furthermore, ‘progress’ in learning negotiation is seldom a steady incremental advancement; more often it is one step backwards, two steps forward. Although some aspects of negotiating can be reduced to microskills that students can practise and improve in isolation, much of the complexity of negotiation stems from the combination of highly contextual strategic options, structural considerations, and interpersonal skills of the negotiators. A second benefit of an ungraded course is that the distinction between evaluative feedback and coaching feedback is more sharply maintained.

When evaluative feedback assesses complex behaviour such as negotiating, it contains little helpful prescription beyond the implied message that one should either ‘do better’ or ‘keep doing well’, depending on the comparative assessment. Nevertheless, in a sense, evaluative feedback is louder than coaching. Students tend to hear all forms of feedback — even comments intended as coaching — as evaluative. A third attractive aspect of an ungraded course is that more of the students may be internally motivated, seeking to learn for the simple sake of learning rather than a means of attaining some external reward, such as a good grade. A final reason to offer ungraded negotiation classes is simply that this method avoids many of the potential difficulties that any grading mechanism presents. In virtually any grading system some students will complain, legitimately or not, that their grades are arbitrary, subjective, or disconnected from the course materials. Eliminating grades liberates students from inappropriate fixation on the teacher’s evaluation system and may reduce the levels of unproductive stress that students often experience. Furthermore, an ungraded system removes virtually the entire evaluative burden that would otherwise fall on the instructor.

While the theory behind ungraded courses is attractive, in practice there may be problems. First, the teacher must still resolve the question about what she is evaluating in the course. Doing away with grades may encourage self-motivation and hard work but of course the reverse may be true. An ideal grading system would encourage helpful student behaviours like experimentation and preparation. Removing grades entirely may threaten students’ willingness to devote appropriate effort to the course.

Several aspects of negotiation lend themselves well to a written final examination. The benefits of using a final exam derive principally from the familiarity of the mechanism, the case with which it is administered, and the opportunity for anonymous relative assessment. Every student in a negotiation class will be familiar with a time-limited written final exam and can take one without experiencing biases or stresses that might stem from an unfamiliar evaluative mechanism. But a final exam has some important shortcomings. In most negotiation courses the readings, exercises, and classroom discussions aim to do more than convey information; they aim to improve students’ ability to negotiate effectively. While a written examination may test a student’s knowledge and analytic ability, an effective negotiator must also possess skills in interpersonal communication and processes, which a written exam cannot test.

On the other hand, final papers indicate nothing about a student’s ability to diagnose negotiation dynamics, to spot opportunities for trades, to assess the relative merits of various negotiation strategies in a given context, or to translate those strategies into persuasive actions. Final papers do nothing to capture the breadth of a student’s understanding of negotiation. Finally, because students choose different topics, the papers present apples-to-oranges problems. Even if a teacher establishes evaluative criteria with which to judge the final papers, many biases may affect the grading process.

Some negotiation teachers require students to keep journals. While some use these purely as a non-graded teaching tool, others assign grades. The instructional use of reflective journals during skills-based studies such as negotiation has important strengths and is well supported by the education literature. By requiring students to reflect carefully on the experiences they have had in class, teachers can significantly enhance the quality and quantity of the lessons extracted from any given simulation. Reflective journals are also useful to the teacher because they provide relatively rapid and substantial information about the kinds of experiences and ideas students are having. The grading process, however, is neither simple nor without costs. One complication is that the purely reflective ideal of journalling is disrupted if students know their journals will be graded. And grading journals requires considerable time and effort. Finally, useful though they are, journals capture only a small part of what actually happens during negotiations.

For many years, teachers have commonly based students’ grades on the substantive outcome they achieved in the assigned negotiations. Students assigned to one of two roles in a simulation negotiated with students representing the opposite side of the case, the outcome each student pair achieved was then compared with the outcomes achieved by all other student pairs representing the same side of the case. The highest grades went to the students who achieved the best substantive outcome.

Outcome-based grading can increase students’ incentives to take the simulated negotiations seriously. In most law school classes an ill-prepared student injures only herself, but in a simulated negotiation an ill-prepared student deprives his counterpart of at least part of the learning opportunity. Grading outcomes creates a powerful incentive for preparation. Furthermore, outcome-based grading can occur throughout the semester, providing students with feedback as they go along in the course and allowing them to adapt their behaviour in the light of the signals they receive.

At the same time, the outcome-based model has several important shortcomings. First, students may experience inconsistency between the behaviour encouraged by the teacher’s words and the behaviour rewarded by her grading system. To some extent, this difficulty can be overcome with a scoring mechanism that is more robust, but assessments beyond simple scoring raise concerns about both subjectivity and administrative burden. Outcome-based grading can also create potentially unhelpful learning opportunities regarding the ethics of bargaining. A third shortcoming is the prospect of inconsistent, and perhaps overly subjective, assessments.

One mechanism, labelled ‘performance-based’, is to observe students as they conduct negotiations and then apply an established set of criteria in assessing a student’s performance. The most significant strength of performance-based evaluation is the direct link between the classroom activity and the grade. In most classes students are trying to develop their practice skills in negotiation, and this method of grading assesses precisely those skills. Evaluating performance has the additional benefit of being based on unfiltered data. Instead of relying on students’ self-reporting, the teacher uses his own observation and judgment to assess the full set of available information.

Grading on the basis of observed performance has three significant shortcomings. First, it assumes that a teacher has the ability to distinguish effective from ineffective negotiating behaviour. Some negotiating actions may be so clearly destructive that no set of purposes would justify them, and some may be universally helpful, regardless of context. A second difficulty is the limitation of any negotiation system with fixed assessment criteria. A third shortcoming is that evaluating performances takes a lot of time.

Teachers of negotiation need not choose a single grading method for the entire course grade. Most of the methods listed above, except of course for the pass/fail option, might be combined with some obvious benefits. Multiple measures permit a teacher to evaluate a broader range of student performances. But adopting multiple mechanisms carries several costs. First, and significant, is the time burden for the teacher. Just as multiple evaluation methods may demand too much of the teacher, they may create too great a burden for the students. Despite these risks, the author remains convinced that the best evaluation system includes a combination of different approaches.


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