Reposting from DRLE: If you teach a simulation course, how do you satisfy the new “direct supervision” requirement under ABA Standard 304(a)?

Quick background on this question: Two years ago, I sent an email to those of you on the DRLE listserv asking whether your law school would consider Negotiation and Mediation “simulation courses” under the new ABA Standard 304(a), reproduced below. Many of you said yes, some of you raised concerns about the wording of the new standard, and then we all turned our attention to the defects of Standard 304(b) regarding law clinics. (As you may recall, the wording of 304(b) wrote mediation clinics out of existence. That issue was fixed in 2015.)

Turning back to 304(a), I am seeking your guidance. There are two ambiguous and potentially problematic phrases in 304(a): “substantial experience” and “direct supervision.”

Regarding “substantial experience,” the ABA has issued a guidance memo explaining what it is (namely, that the simulation course satisfy the “primarily experiential” standard articulated in 303, which means that the main organizing principle of the course (>51%) is the experiential nature of the course and that law/doctrine is more incidental). So most of our Negotiation and Mediation classes will satisfy this requirement, I imagine.

Regarding “direct supervision of the student’s performance by the faculty member,” the ABA has not defined what this means, as far as I know. (If you know differently, please tell me!) I think we who specialize in experiential learning can provide helpful insight into what this provision means. (Additionally, one of my colleagues is seeking out someone from the ABA Council to see if that person can provide guidance on what the Council was thinking when they worded it that way.)

So here is my question to those of you who teach simulation courses: How do you provide direct supervision of your students’ performance? I would like to compile some thoughts around how this “direct supervision” takes place so that we can help explain what that term means (or should mean).

For example, I don’t watch each and every one of my students negotiate every simulation. That would be physically impossible. But I do arrange the simulations and pairings, I conduct debriefs and fishbowls, I occasionally walk around and eavesdrop as possible, and I ask them to videotape some of their simulations for review and analysis. Sometimes I even comment on their performance journals. Is this what you do? Do you do other things? Do you think that “direct supervision” requires more?

Thanks so much for any thoughts you can provide! jen

Here’s the definition:
(a) A simulation course provides substantial experience not involving an actual client, that (1) is reasonably similar to the experience of a lawyer advising or representing a client or engaging in other lawyering tasks in a set of facts and circumstances devised or adopted by a faculty member, and (2) includes the following:
(i) direct supervision of the student’s performance by the faculty member;
(ii) opportunities for performance, feedback from a faculty member, and self-evaluation; and
(iii) a classroom instructional component.

Jennifer Reynolds is an Assistant Professor at the University of Oregon Law and the Faculty Director of the ADR Center. Teaching civil procedure, conflicts of law, negotiation, and mediation, her research interests include dispute systems design, problem-solving in multiparty scenarios, judicial attitudes toward ADR, and cultural influences and implications of alternative processes. She is also a contributor to ADR Prof Blog.