We all know about situations when people say that they really like the idea of ADR, but it’s not appropriate in their particular case. Sometimes there are very good reasons not to use an ADR process. Other times, not so much.
There may be similarities in some people’s reaction to the idea of using a Stone Soup assignment in their courses. Sometimes , there are very good reasons not to do so. Other times, however, I wonder if people have misconceptions and havena
Mediation is the best option for trial cases, as it saves California intellectual property attorneys and clients’ time, money and uncertainty. As an attorney, being able to flag cases with potential for resolution through mediation can save you time and energy. The mediator’s job is to help the parties reach a mutually acceptable solution.
Mediation can save time and uncertainty by avoiding going to court. It takes a simple few phone calls and/or emails to contact all parties and their lawyers to select a mediator and to schedule mediation. The location should be at neutral site to avoid any implications of bias or favoritism. There is also a memo included that involves a synopsis of the case and all supportive evidence and witnesses for the mediator to examine and help the parties consider options.
Keeping your client from going through the aggravation of court can be beneficial not just for them but for you, too. All too often, some clients don’t realize the amount of work and time required to prepare case for trial, or how long it can take to present their case in the court system. Being upfront about the potential for resolving the case outside of court can allow all persons involve avoid the challenges and uncertainties associated with litigation.
Mediation can also save all parties a good amount of money. An intellectual property attorneyshould work to help clients resolve the dispute in as a short timeframe as possible which incidentally is usually the least expensive way as well.
’t considered the options carefully.
So this post is to encourage colleagues to consider the range of ways that you and your students might benefit from using a Stone Soup approach in your courses next year.
I have been in touch with colleagues encouraging them to consider using Stone Soup. Some friends who have doubts mentioned several reasons. These include that they are not ready to make changes in their courses, they do not have time to include anything additional (especially in a low-credit course), the courses they teach aren’t suitable, students may not be able to find suitable interview subjects, and they are teaching courses online.
It may not make sense to change when a course is working well exactly as is, there is a lot of material that is covered on the bar exam and/or that is really essential, or one’s circumstances make it hard to change.
On the other hand, I suspect that some colleagues haven’t recognized some of the benefits that they and their students can realize from Stone Soup assignments and that some of their worries may not materialize.
The assignments need not add much, if any, workload, students generally can find interview subjects without faculty assistance, and Stone Soup can work well in almost any law school course.
Stone Soup Contributes to a More Balanced Educational Diet, Adding Context of Disputes and a Focus on Parties
Readings on legal doctrine are acontextual to the max. Of course, students get value in reading excerpts of appellate case reports to learn about legal doctrine and analysis. Similarly, students get value in reading about practice theory.
But I think that most law students get too little education about how cases actually look to lawyers. In real life, cases are full of facts, evidence, uncertainty, risk analysis, interests, relationships, and emotions, which provide context that is systematically stripped out of most of our teaching materials.
And parties – central characters in the work of lawyers’ and other DR professionals – typically are portrayed as cardboard figures who are included merely to demonstrate our teachings, not as the principals, who lawyers serve.
You know this. People – maybe including you – have been saying this for a long, long time.
Stone Soup offers you an opportunity to provide a slightly more balanced educational diet for your students by adding more of these perspectives in your teaching.
Stone Soup Assignments Need Not Add Much, if Any, Workload for Faculty and Students
I suspect that a lot of people’s hesitance to consider using Stone Soup is that they fear it would add too much to their workload and that of their students. Faculty are already too busy and just the thought of adding anything gives them the heebie-jeebies.
Generally, using Stone Soup doesn’t add much, if any, workload. And there are things you can do to avoid or minimize extra workload. You don’t have to require students to write papers or grade students on Stone Soup assignments. In fact, it could reduce your workload if you devote a class to discussing Stone Soup experiences instead of preparing a class based on readings.
We have developed materials you can use or adapt, so you don’t have to re-invent the wheel.
Although most Stone Soup faculty have required students to write graded papers about interviews, you don’t have to do so. In Brian Farkas’s Arbitration course, he required each student to interview an arbitrator but they didn’t write papers about the interviews. Instead, he had students present their interviews in one of the first classes in the semester, which they could refer to during the rest of the course. He was ecstatic about the results.
Another option is to plan a “focus group class” in which you invite a panel of guest speakers who would be asked carefully planned questions. For example, in a Criminal Law or Procedure course, you might invite a prosecutor, defense attorney, and a judge to talk about plea bargaining. Rather than having the speakers give presentations, you and the students would ask them to address certain questions.
Most faculty already require students to submit papers and you could assign students to write a Stone Soup paper instead of what you previously assigned. For example, if you assign students to submit a number of journals, you could substitute a Stone Soup paper for one of them.
Here’s a table identifying characteristics of Stone Soup courses, which shows that faculty assigned papers of varying length, ranging from 1-2 double-spaced pages to 15-20 pages, with most in between. While most of the courses had enrollments of 10-30 students, Andrea Schneider required students in her 70-student ADR survey course to write 1-2 page papers, which she did not grade. She absolutely raved about the experience.
While there is value in having students write papers analyzing theoretical issues without any content from the real life of dispute resolution, I think that students are likely to get more value – and enjoy it more – if your assignment requires them to interact with actual parties or dispute resolution professionals. Take a look at these papers from Rafael Gely’s Negotiation, Stacey-Rae Simcox’s Trusts and Estates, and Bob Dauber’s Evidence courses and see what you think.
Students Generally Can Find Interview Subjects Without Faculty Assistance, Especially if They Can Interview Parties
Some faculty worry that students will have a hard time finding people to interview for Stone Soup assignments. Although some students have needed help to find interview subjects, they generally have been able to find people on their own.
Rafael Gely’s Negotiation students were remarkably resourceful. Assigned to interview people about actual negotiations, they interviewed (in no particular order): buyers of solar energy systems, real estate firm executive, owner of a small business, sales person, real estate agent, university athletic director, sports agent, insurance client, insurance claims representative, employee, corporate recruiter, car owner, construction general contractor, automobile broker, boyfriend, hospital risk manager, lobbyist, church couples counselor, corporate executive, software company project manager, employment supervisor, student, car buyer, and homeowner. Oh yeah, some students interviewed lawyers. Presumably, the students already knew these people, who were happy to be interviewed.
In Stacey-Rae Simcox’s Trusts & Estates course, where she assigned students to conduct interviews about estate settlements, many students interviewed friends and relatives.
For his Arbitration course, Brian Farkas asked arbitrators he knew to be interviewed. Similarly, many faculty have networks of practitioners who would be happy to help.
For students who need help finding interview subjects, you might get help from your alumni office to recruit alums who would like to be interviewed. In my experience, practitioners generally love to talk about themselves and their work – and are flattered to be the focus of attention. Lawyers often remember their own experiences in law school and want to help students. This also is an easy way for alums to give something back to their school – which doesn’t cost them a dime. And it could increase their connection to the school, perhaps warming them up to make financial contributions in the future. Wouldn’t that make your dean happy?
Stone Soup Can Be Used in the Vast Majority of Courses
So far, Stone Soup has mostly been used in bread-and-butter ADR courses, but it can be used in a wide variety of courses, including courses focused on legal doctrine and litigation. For example, Bob Dauber used it in his Evidence course, assigning students to make observations in court. This handout describes how it can be used in Employment Discrimination, Labor Law, Professional Responsibility, Civil Procedure, and Criminal Law courses
In a Civil Procedure course, students could interview lawyers about their strategies in drafting pleadings or motions. I don’t know how folks teach it these days, but when I took Civ Pro, it focused on technical rules with little discussion of real world strategy. Most 1Ls probably would enjoy talking to practitioners about how they actually use the rules in practice.
In a Contracts class, you might have students interview friends or relatives about a challenging contract negotiation or dispute.
In an online course, students generally should have no greater problem finding subjects than in a residential course.
Faculty generally have assigned students to conduct interviews about actual cases and/or practitioners’ backgrounds, philosophies, and practices. Some faculty assigned students to observe court proceedings or mediations. You can tailor an assignment to fit your educational objectives.
I could go on, but if you want to give your students the benefits of a Stone Soup assignment, you can figure out how to do it in almost any class – except for something like Law & Literature.
Weighing Costs and Benefits
If you consider using a Stone Soup assignment in your course, you would analyze whether its benefits outweigh the costs of omitting anything it would displace. Since faculty almost never have enough time to do everything they want in a course, this can be a difficult choice.
While this realization can be daunting, it also can be liberating. Since you inevitably have to omit some valuable material, you can decide that gaining the Stone Soup benefits would outweigh omission of the lowest priority material you would otherwise include. Indeed, even in bar courses, faculty sometimes decide not to cover everything on the exam, valuing depth over breadth and recognizing that students will learn some things in bar review courses.
If you want to consider using Stone Soup next year, this post highlights some of your options for doing so.
If you decide to use Stone Soup, please let me know which course(s) and semester(s) so that I can include you in the roster of next year’s Stone Soup faculty.