Do you remember when you were a kid, bursting with curiosity about how and why things worked they way they do?  If you’re a parent, grandparent, or other person in close contact with young children, you don’t have to go that far back to remember their intense wonderment.

Woody Guthrie wrote a song about this, which I gather describe conversations with his son, Arlo, when he was a youngster.  Here’s the final verse, following a long series of responses to Arlo’s questions:

Why, oh why, oh why oh, why and why, oh why, and why?
Because because because because
Goodbye goodbye goodbye

Many students, as novices in their fields, also are fascinated with new areas of learning.

As we grow older, many people – present company excluded, of course – get worn down by multiple responsibilities of adulthood, like Harry Chapin’s characters in Cat’s in the Cradle, and lose some of our longing to learn.

This is true even for academics, who are in the business of learning.  We have too many classes, meetings, presentations, publications to “produce,” etc. to spend much time enjoying the love of learning that initially inspired many of us.

As I described in recent posts in this mini-course, Stone Soup provides opportunities for students and faculty to experience the joy of learning.  I have shown that qualitative research has yielded some really cool studies as well as some more modest ones that sparked new insights.

It is a tool that you can use to learn about a virtual infinite number of things.  So, what do you want to know?  What do you think your students want to know – and what do you want them to know?  This post addresses these questions to help faculty decide how to frame our Stone Soup assignments and activities – as well as research questions for our own scholarship.

What Do You And Your Students Want to Know?

Faculty who have been teaching for a while can reflect on things that concerned, surprised, or divided their students in prior years.  What did they ask about or argue about?  What didn’t they ask about that you thought they really should know about?  As a course proceeds, it would be useful to keep track of their questions about how things really work.  These would be particularly appropriate questions for “focus group classes.”

You might come at this from the opposite direction: what do practitioners want to know?  We asked people at the ABA Section of Dispute Resolution conference about what they wanted to know more about and I was surprised at some of their responses.  In particular, I was intrigued by questions about relationships with clients.  We often focus on issues between different sides of a case and pay less attention to clients’ perspectives and how practitioners deal with them.  The Relis and Sarat & Felstiner studies I mentioned, among others, address these important questions, and I think it would be worth exploring them further.

So I think it would be great if law students interviewed legal clients to hear their experiences.  Law students are immersed in the perspectives of lawyers and judges.  It would help to focus, at least a little, on clients’ perspectives.

I would like to learn about what practitioners want to know more about, both to provide questions to use in Stone Soup assignments and activities as well as being an interesting subject in its own right.

Some Specific Questions

Many of us strongly believe in the value of certain approaches to dispute resolution (such as interest-based negotiation and facilitative mediation), which we teach in our courses but aren’t used in practice as widely as we would like.  Why not?  We may have our theories, but it would be great to use qualitative methods to explore this empirically.

Similarly, many of us are critical of arbitrations involving consumers, employees, and other one-shotters that are conducted pursuant to pre-dispute arbitration clauses.  What actually happens in these cases?  How do the one-shotters fare?

Conversely, we may want to study why some practitioners swim upstream, using approaches that most of their colleagues do not.  Social scientists refer to these as “deviant cases.”  For example, if lawyers rarely use interest-based negotiation techniques, you and your students might ask lawyers about situations when they did use these techniques and why they did so in those situations.

Peter Benner and I used a deviant case approach in our study of planned early dispute resolution.  Relatively few businesses use PEDR systems and we wanted to find out why some actually do.  We really learned a lot in only 15 interviews and we developed some good ideas about factors supporting development of these systems.

There has been a lot of concern about the “disappearing” joint session in mediation.  Why are people not using joint sessions very much – and when are they using them successfully?

You might explore the reality behind some theoretical concepts that are, to use the technical term, a bunch of mush.  The ABA Task Force on Improving Mediation Quality asked people about different elements of so-called “evaluative” mediation, finding that people had very different feelings about the different theoretical elements of evaluative mediation.  The Wall and Kressel article I mentioned provides a different way to frame mediators’ approaches.  Similarly, my piece on theoretical conceptions of negotiation approachessuggests a need for better conceptualization of how people actually negotiate.

For another approach, you might want to focus on variables that may have significant causal impact.  For example, you might want to know about the effect of pre-existing relationships (or expectation of future relationships), whether the parties were individuals or organizations, whether the process was court-ordered or established by a pre-dispute agreement, whether some or all of the partes were represented by lawyers, whether counterpart lawyers had pre-existing relationships (and whether those relationships generally were cooperative), the relative power (im)balance between the parties, whether there were stakeholders “not at the table,” whether one or more parties had insurance coverage, whether litigation was pending during the case and, if so, the stage of litigation when various activities took place, whether a dispositive motion was pending (or was decided), or whether the case focused on monetary or non-monetary elements or both.

In my last post, I included interview and focus group protocols to illustrate questions I have asked and how I structured the interviews.  You could use or adapt some of the questions from those protocols.

Bottom line: There are a ton of things you might want to know about how dispute resolution works in practice and you could use the Stone Soup assignments and activities to learn.  Your biggest problem may be choosing just a few of them.

John Lande is the Isidor Loeb Professor Emeritus and former director of the LLM Program in Dispute Resolution, at the University of Missouri, School of Law. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He is also an avid writer and contributor to Indisputably.org