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Ver Ploeg, C D; Hilbert, J --- "Without a net: Advanced ADR students problem solve for real" [2011] LegEdDig 10; (2011) 19(1) Legal Education Digest 34


Without a net: advanced ADR students problem solve for real

C D Ver Ploeg and J Hilbert

William Mitchell Legal Studies Research Paper, No. 2010-18, 2010, pp1-31

Seven years ago William Mitchell College of Law (WMCL) took a leap of faith and offered an experimental course in which interested students were given the chance to assume full responsibility for commencing and completing a substantial and complex project for a real client. That opportunity – titled Advanced Alternative Dispute Resolution for lack of a better name – had no textbook, no tidy lesson plan, and no teacher’s manual. Instead, the project was premised on faith that a group of 15 students, most of whom did not know each other, could come together and design, from scratch, a quality dispute resolution procedure for a Fortune 500 company that needed a thoughtful approach to recurring internal disputes.

That early experiment proved so successful that every year since then WMCL has continued to offer upper level students the opportunity to complete their ADR training by undertaking similar work on behalf of a new client. This spring students worked with our eighth client. In 2005 the course was awarded the CPR Institute for Dispute Resolution’s Award for Excellence in ADR: Problem Solving in the Law School.

It is true every class experience has been different, and other schools who undertake to offer a similar program will face their own unique challenges. However, we also believe that the concept we have created and developed can be implemented wherever interested teachers possess the requisite experience, community connections, and facilitation skills and wherever there are organisations with vexing internal and external disputes.

WMCL’s Advanced ADR class is neither a lecture course nor a seminar. Rather, it is best viewed as an extended exercise in creative problem solving. Students determine and direct their work to the fullest extent possible. Faculty members participate as little as possible, stepping in only to facilitate, to inject an occasional dose of reality and to ensure the quality of the students’ final work product. The students’ most immediately apparent challenge is to design an effective dispute resolution process for their client. However, they soon discover that learning how to work together effectively as a team poses an equally important challenge. Project management is central to all that the students do as they conduct legal and field research, meet with their client, draft materials, and make presentations.

Thus, throughout the semester the students must work collaboratively to analyse their client’s unique needs and design customised ADR procedures to meet them. The client, who in all but the first project has been a non-profit organisation, has genuine and complicated problems.

Students assume, at least initially, that their only goal is to produce a useful dispute resolution process. However, project management is at least as important goal as the work product itself, for a group that cannot effectively collaborate will rarely, if ever, be able to produce quality work. In this way, the project replicates the practice of law. Lawyers rarely work in isolation. They negotiate, they problem solve, they meet in committees, they serve on task forces. A strong argument can be made that law schools provide insufficient opportunities for students to learn to work together in significant ways.

In time, most students appear to appreciate that for the group to move forward, everyone must not only feel comfortable expressing their own views but must also learn to respond diplomatically to others’ contributions. The important thing is to facilitate forward movement, not to provoke defensive resistance.

Many students are uncomfortable that there is no text, no agenda, no boilerplate model that simply awaits discovery. It takes time for the students to realise that they themselves must create a customised process and that no roadmap lies before them. Thus it has sometimes been necessary to explain to uneasy students that the challenge of the semester’s project, indeed the challenge of the practice of law, is to ‘figure out what to do when you don’t know what to do’.

In short, the Advanced ADR project gives students the opportunity to work together on behalf of an authentic client with a real problem for which there is no ready-made solution, to design a strategy to tackle that problem, and ultimately to create a customised work product that addresses the client’s problem in the best way possible.

The greatest challenge has typically been finding the right client. The ideal client is an organisation which experiences recurring, often festering, interpersonal difficulties and where organisation leaders recognise – or are open to considering – the value of developing a thoughtful approach to addressing those problems. Clients are ultimately selected based on three criteria. One factor is the suitability of the client’s needs for a one-semester student project. Although clients are not always able to identity and clearly articulate their needs, especially at the outset, faculty members must be able to grasp the direction the project might take.

A second factor used to select a client concerns the person or persons who will serve as the students’ primary contact or contacts. The key to the success of any project is on-going student interaction with a client liaison who understands and can communicate the organisation’s needs, who can be contacted regularly for additional necessary information, who will attend a formal mid-semester ‘course check’ to ensure that the students are proceeding in the right direction, who will attend the end-of-semester formal presentation, and who will assume responsibility for implementing the final work product. The best clients have been those who were not only enthusiastic about the project but could also provide insights into highly relevant, but not immediately apparent, political and personal dynamics that would affect the success of any final process.

Third, we strongly prefer to provide these services to non-profit organisations; our first client has been the only for-profit entity we have served. Also, at the beginning of each semester we impress upon the students that they will be providing a quality work product for which attorneys typically charge, and clients pay, quite high fees. The students can better appreciate the value of their efforts if they are assisting a non-profit organisation, rather than providing their work product ‘for free’ to a for-profit business that would otherwise pay fair market value for it. Finally, both the client and the students understand that they are entering into an attorney-client relationship. For that reason, this article has not identified our past clients.

Students are upper level law students, most will graduate at the end of the semester. Advanced ADR is considered a ‘capstone’ course in which students have the chance to combine theory with practice. Enrolment, which is now capped at 15 students, has ranged from eight to 25 students. Large groups are not only unwieldy, they tempt some students to ‘hide out’ and coast as ‘free riders’. By contrast, our smallest group – eight students – worked together very effectively and produced a high quality product.

Although one hallmark of Advanced ADR is its nimbleness and any classroom will suffice, the ideal classroom is a relatively small, seminar type room which has technical capabilities. Faculty members have been pleasantly surprised by the way in which students have quickly led the way in creating online methods to communicate with each other, share all information, collectively edit documents during class time, and prepare manuals, power point presentations, web sites and electronic materials for their clients.

We also reassure the students that if at first they feel like they are adrift, this is not unusual. Others have felt the same. Our collective goal is to determine, ‘How to figure out what to do when you don’t know what to do’. On a more operational level we note that other groups have found it valuable to assign a ‘scribe’ for each work session, to ensure that important information is not lost and is readily retrievable. Similarly we encourage – but do not require – that the students conclude each work session by assigning specific tasks and preparing the next session’s agenda.

The role of faculty in the Advanced ADR course is quite different than what professors do in the typical law school classroom. As faculty in the course, our principal responsibility is supervising the work of the students, providing quality control along the way, and sharing important lessons at the appropriate moments.

The challenge for faculty is to guide that learning without being too overbearing, so that students are truly driving the process. Faculty must strike the right balance so that the final project is high quality and the students have the opportunity to learn and apply key lessons about working together and developing successful dispute resolution programs.

Since its inception, the course has been co-taught by two professors. Team teaching has been a necessary feature for a number of reasons. Having a second pair of eyes and another set of ideas offers much needed support. Second, each faculty member brings her own unique set of skills and experiences. Third, as students break into different subgroups, the two of us can split our time and provide one-on-one observation and support to more than one group at a time. Another interesting aspect to team teaching is that it requires that we collaborate, just like the students. In some ways, our team teaching provides a model to the students of how multiple players can work together on a single project. During class discussions and in other contexts, students observe how we as co-teachers interact and work together on providing guidance and feedback, and how we work through – often on the spot – our sometimes different perspectives on how next to proceed.

Naturally, the structure of the class tends to limit the use of faculty-led activities during the course. Indeed, much of the class leadership often comes from the students themselves, who can take turns leading the discussion or asking questions of other students to move the process along.

Rather than taking direct control of the matter, we are able to ask key questions, probe other options and allow the students to find the answer and remain in control of their work. As students wrestle with their discomfort and labour to find the right next steps (or help their colleagues in the class reach the right decision), that ‘disorienting moment’ can provide some insight into the practice of law in ways that are quite powerful.

Some sense of frustration can be an important part of the learning, as students try to figure out the very real work of structuring their task and prioritising the assignments. The work of the class is driven in large part by the students themselves, as it will be for them once they graduate. The students therefore have in effect two specific tasks, which are closely related. They must put together the project, and they must do so in a collaborative fashion. The project is far too complex and large to be handled by any individual student, so they must all work together – in some fashion – to create the final project.

Part of the challenge for the students is finding the right balance for leadership. While they will work as a group, leadership is critical to keep the group moving and to help resolve the many minor disagreements that can arise on everything from agenda to direction of the project to substantive issues.

One of the first tasks undertaken by the students is to break into subgroups. As a first step on day one, we always have the students introduce themselves and share their background and relevant work experience. This can help the students assign themselves to appropriate subgroups that might use some of the individual strengths identified.

As the project continues, it is also an important lesson for the students that they critique and often rearrange their initial subgroup structure as needed. As more information is gathered, or as unanticipated obstacles arise, the students may need to reconfigure themselves into new or different subgroups during the semester. They must also, of course, maintain some degree of overall cohesion and check-in periodically as a large group to ensure a coherent project and that there are no major gaps. Toward the end of the class, additional subgroups may be needed around generating the final work product, such as an editing committee or a presentation subgroup.

For the most part, much of the formal class structure is driven by the students as they decide how best to use the time they have to work on the project. Indeed, many class sessions are used simply for meeting times for various subgroups or the full class to review work product, assign new tasks, resolve different ideas on how to proceed, or other specific tasks. Yet there are some very important structural components that we have found are crucial to keeping things moving and working smoothly.

We have found over the years that one key piece of guidance that is required from faculty is to clarify the agenda and identify the tasks to be completed between each class period. For example, at the end of each class, regardless of how the class period has been spent (and even whether the entire class time has been used), we spend a few minutes discussing what each group (or individual) will do before next class. At that time as well, we also discuss how we will we spend the next class period.

Then at the beginning of the next class, we conduct a quick check-in and reminder on what is planned for that class period. That moment is also an opportunity to recap and make sure everyone is on the same page. Together the agenda between classes and the check-in at the beginning of class create an informal accountability structure to make sure things are moving along and that each subgroup (and to some extent, each individual student) has to report ongoing project activities. After one or two weeks of faculty leading this process, the students begin to catch on and they initiate the conversation at the opening and closing of each class.

In addition to the opening and closing of each class, there also must be sufficient opportunity for the class as a whole to share information and to report on any new or challenging developments. Technology can be a useful tool for sharing information. Our class has relied on Blackboard and more recently on some of the newer features on Google and other wiki and webhosting sites. Through document sharing on Blackboard, the group can stay appraised of developments and work product of the other subgroups without spending a lot of class time presenting or reading their work. They can use other technologies to assist the project, such as creating a pilot web site for the client on one of the free website providers.

The full class sessions can also serve as a check in on the overall progress of the project. Often subgroups form early on and go off on their own in different directions. It is important for the different groups to see where each other are headed to also check to see if the overall project is coming together, such as what pieces might be missing, what areas are more complicated (questions that may not be obvious until after some work has been done). It is often common for some class periods to be used entirely by subgroups so there has to be some effort made to bring the groups together to share information and update each other on their progress.

Also, the whole class must stay in touch on how the work product is being constructed. At some point in the middle of the semester, a picture emerges of how the final work product should look, and what types of presentation formats will be used, such as flowcharts, texts, PowerPoints, and other presentation formats. Just as a group of professionals would need to regularly check-in to decide on major issues related to their work product, so too do the students need to make sure they are all on the same page, and that their work is all headed in the same direction.

While each class project is different and reflects the different needs of the particular client, there are some consistent features and observations with respect to the final work product that will be submitted and presented to the client at the conclusion of the class:

(1) Written manual: Each client has requested the design of a dispute resolution program or process. The written manual contains the description of the program and all forms and other accompanying documents (often in appendices). The forms and other documents include everything from sign-in sheets for participants to flow charts for users to marketing materials, which includes brochures, websites and all other outreach type materials. The manual with the appendices is the heart of the work product and usually represents the largest value to the client.

(2) Presentation: Hard copies of the manual are distributed to the representatives from the client. The content of the project is highlighted through a PowerPoint presentation or other presentation format. The presentations have usually lasted between 60-90 minutes.

(3) Electronic copies: The client also receives an electronic copy of the manual so that it can be integrated into any other materials the client uses. The client can also update or modify the work product as needed over time. The client also receives electronic versions of all presentation materials, such as the PowerPoint presentation. This can be helpful if the client representative at the presentation needs to make a presentation of their own concerning any part of the program to others.

The final class is an opportunity for a few important last lessons. Namely, that the work of a group is better than the work of an individual. The students use the final class to review the process they used and even reminisce about how the subgroups formed and worked. It is a critical lesson to confirm. At the same time, it is a good opportunity to review what made the groups work and what did not. Class discussion can be quite spirited and productive reliving the good and the bad. We have used the last class to let students lead the discussion and actually list on the board the specific things that did and did not work to make the lesson interactive and lasting.

Typically the clients are extremely happy about the work product, so it can be fun for the class to debrief on the client excitement. To make the feedback real, we have actually gone around the room and told each student individually what particular contributions we found valuable, providing not only some positive feedback but public acknowledgement.

As with all grading and evaluation in law school, it is imperative that the standards of evaluation are communicated clearly at the beginning. Particularly here where there is no final exam or paper, and the entire grade is based on the participation in the project, students must understand exactly what is expected and how they will be measured. We also make clear at the beginning that the students are responsible for keeping track of their work and time during the course, similar to how lawyers bill their time. That way, they can track and participate in the accountability of their work, and we have documentation on their effort.

While it may at first sound hard to understand how we can know how each student contributes to a group project, particularly where subgroups are used and much of their work is done outside of our observation, it becomes pretty clear early on who is doing the most work in various groups and who the strong contributors are. Because their work is given lots of feedback and opportunities for improvement, the grades have tended to be high in a very small range. This is the ideal. It reflects a quality project to which everyone contributed.

Although each semester’s students and clients have been different, and Advanced ADR still feels like ‘working without a net’, the students have always risen to the occasion. Students typically view their ‘real life lawyering’ as among the most satisfying of their law school experiences.

This article has detailed our experiences and suggestions, for we believe that other law schools can customise and implement their own programs to provide students this unique experience and clients a quality work product.


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