Horan, J; Taylor-Sands, M --- "Bringing the court and mediation room into the classroom" [2009] LegEdDig 13; (2009) 17(1) Legal Education Digest 46

---

TEACHING METHODS AND MEDIA

Bringing the court and mediation room into the classroom

J Horan & M Taylor-Sands

18 Legal Educ Rev, 2008, pp 197–214

Civil litigation is a dynamic process. One of the great challenges for teachers of civil litigation is conveying the dynamic nature of litigation in the formal environment of a lecture theatre.

Witnessing litigation in action is an ideal way for students to develop a sense of ‘how it all works’ in practice. Where student numbers permit, court visits are a very successful method for both engaging students and contextualising the rules of court. It is much more difficult to bring the subject of civil litigation alive in larger classes where student numbers pose a logistical barrier to court visits and in-class group exercises. Taking large numbers of students to the courts is not a viable option. Locating a courtroom where an interlocutory application is being heard in its entirety is not simple. Even if you are able to find an interlocutory application that runs, it is difficult for students to follow what is happening in court without the court file or access to the lawyers.

Another important factor in teaching civil litigation is that most civil court cases ‘are resolved without a hearing, through direct negotiations between parties, conciliation, mediation and other processes’. A vital aspect to teaching civil litigation is therefore to convey how negotiation and mediation interplay with the traditional court processes. Negotiations are a step by step process mainly conducted informally between the parties’ legal practitioners. Mediation is increasingly becoming a routine step in the litigation process, imposed by many courts under their case management procedures. Due to the private nature of mediation in Australia, it is not viable to arrange for students to observe mediation in practice.

Given the logistical problems in facilitating court visits and exposing students to real-life negotiations and mediation, the authors decided to bring the court and mediation room into the classroom through a simulated dispute, which students were able to watch on DVD. There are a number of recognised benefits of ‘role-playing’ simulations in legal education (where students actively participate in the simulation). These include bringing the subject to life, promoting active learning, developing basic interpersonal skills, encouraging constructive student interaction and involvement, increasing student confidence, and providing a framework within which to raise ethical issues. The use of a simulated dispute which students watch on DVD (rather than directly participate in) has many of these benefits. Another key benefit of using DVD clips is that they provide a visual method of instruction, which balances the more traditional verbal method of delivery used in lectures and assists students to learn in context. Getting students to watch a simulated dispute also enhances interactive or experiential learning as it allows students to model the behaviour they see in a DVD in subsequent role-playing simulations. In the context of civil disputes, simulations can also bring to life the rules of procedure and the theory of dispute resolution, which can only really be understood in the context of a dispute.

A multimedia project called ‘Litigation in Action’ was devised in an attempt to bridge the gap between the classroom and the court and mediation room. The project generated a DVD entitled, Keeping Your Cool — A Guide to Civil Dispute Resolution, which simulated the common steps involved in a civil dispute, from the initial client interview through to informal negotiations, mediation and several interlocutory hearings, culminating in a trial.

The development of television, computers and the internet has revolutionised how people communicate. In a society bombarded with visual images, it is not surprising that many people process information more easily when it is presented in a visual format. While all students differ in their learning styles and preferences, several studies have shown that most people of tertiary age and older describe themselves as predominantly visual (as opposed to verbal) learners.

The categorisation of ‘visual’ and ‘verbal’ learning styles is based on the Felder-Silverman tertiary education model. Visual learners learn best from what they see, such as pictures, diagrams, graphs, flow charts, films and demonstrations. Verbal learners learn more effectively from words. For example, they prefer either written or spoken explanations and learn even more by explaining things to others. Felder and Silverman assert that teachers should cater for different student learning style preferences by striving for a balance of instructional methods.

Broadly speaking, educators recognise the significance of a communication trend based on visual images and are eager to bring education up to speed. Law schools, however, have been slow to integrate technology in the classroom. The remainder of this paper will focus on the use of multimedia technology to develop a visual learning environment in civil litigation classes, to enhance (rather than replace) other more traditional methods of teaching law.

Delays were expected and experienced. The project was made under a strict budget of less than AUD $50,000. This was made possible by using in-kind services of law staff, the university’s multimedia department and members of the profession (such as the judges and lawyers that appear on screen). The project was financed through a small faculty multimedia grant in collaboration with the Leo Cussen Institute, Melbourne.

The project involved the drafting of a fully scripted scenario and a suite of background documents, including a court file. The script was professionally edited to ensure a realistic production. The authors recruited actors (both professional and amateur) to play the various characters involved in the dispute. The various scenes were filmed over four days. The footage was then edited and graphic designers were used to prepare a user-friendly end product. The scenario related to the plaintiff purchasing an air-conditioning unit from the defendant that exploded shortly after being installed by the plaintiff’s brother in law. The subject matter is a typical consumer type dispute and would be considered too dull to make a television plot line but is realistic enough to hopefully engage the students.

The final DVD includes a number of live demonstrations (or clips) which form the basis of the dispute. The scenes depict the various stages of litigation, including courtroom activities and other dispute resolution processes, eg. client interview, settling a statement of claim, mediation, directions hearings, two interlocutory applications (summary judgment and joinder) and trial extracts. The DVD scenes are complemented by a large file of documents. The file is not dissimilar to what a party’s legal practitioner’s file would look like in such a dispute. There are file notes of telephone calls, the client interview file note, a brief to counsel, court documents and correspondence between the parties and between the plaintiff and his legal practitioner.

A selection of the DVD clips was incorporated into the teaching syllabus for Dispute Resolution in 2006. The classes in which the DVD was utilised incorporated other tasks, such as reading, discussion, role-plays and reflection, to build on the information presented in the DVD.

Individual clips were shown to students in classes which covered the subject topics in the clips. So, for example, in the class on commencement of proceedings, students were shown the client interview clip where the solicitor discussed with the client the nature of the claim and considerations relevant to commencing proceedings.

Ideally, students were provided with a selection of corresponding file documents relevant to the clip a week before they were to be used in class. The documents were made available to students via the online subject page, which included downloadable versions of these materials. Also the clips were made available on the online subject page immediately after the class in which the clip was viewed and discussed.

The timely and limited publication of the clips and corresponding documents to the students enrolled in the subject was designed to encourage students to attend class and not just rely on the notes collated by, for example, a student who took the class last year. The limited publication of the documents also gives each teacher the choice of whether or not to use particular documents in the file. The document file is detailed and was created with the knowledge that it would be unrealistic to discuss all the documents in a first year introductory subject.

As part of the multimedia package, a list of questions pertinent to each clip was also created for discretionary use by the teachers. Students were given a list of questions to consider, based on the scenario in the clip, immediately before being shown the clip. The questions attempted to integrate the practical matters dealt with in the clip with the theory contained in the readings. For example, in relation to the client interview clip, students were asked: ‘What is the dispute about? Is the dispute suited to litigation? What options to litigation does the lawyer mention?’ These questions required students to understand not just the legal practicalities of a dispute but also elements of dispute resolution theory covered by the readings. Class discussions, based on the list of questions provided, occurred after the clips were viewed.

In some instances, students were required to participate in role-play exercises relevant to a particular subject topic. For example, after students were introduced to ADR theory and shown a clip on mediation, they were then divided into groups to participate in various negotiation and mediation simulations. Students were given the opportunity to play a variety of roles, including that of the client, lawyer and/or mediator. This was a valuable experience for students as, later on in the course, they were assessed on their performance in a negotiation. The negotiation assessment exercise was based on a different factual scenario from the one shown in the DVD.

Teachers were generally positive about the use of the DVD as a teaching tool. Some teachers found the clips to be very useful for providing a factual matrix to explain difficult concepts. For example, the interlocutory application seeking to join a third party made the often confusing topic of multiparty joinder much easier to teach. This is because the students were familiar with all the particular parties in the dispute and could therefore focus on the legal concepts rather than be distracted by which party is which. Another great time-saving benefit was the use of the same fact scenario throughout the course. This avoided the need for teachers to explain the facts in each class as the students were intimately familiar with them.

The teachers observed that class discussions that followed the showing of the clips were lively. By showing the clips in class, students were given information on a topic in an easily digestible and engaging form.

Many students who otherwise did not talk in class spoke up. Students who hadn’t done the reading were able to participate in the class discussion, based on what they saw in the clips.

Some of the teachers believed that by giving students a glimpse into the background to a dispute, the clips facilitated student-directed learning and encouraged students to make connections between different topics in the course. This assisted the teachers in conveying an important conceptual point: although the course is taught in specific topic order, according to how the ‘usual’ litigation steps may proceed, there is no set order of process in litigation.

The authors designed a survey to obtain feedback from students, which was distributed before the conclusion of the Dispute Resolution subject held in Semester 2 of 2006. The survey questions were designed to gain a broad overview of student perceptions of the product and gain some insight into how to improve the use of the current product. A similar product could be used in other subjects (such as torts or criminal law).

Of the six streams of Dispute Resolution classes, we surveyed four of the streams. There were 168 students enrolled in those four streams and 113 of those students responded to the survey. Those who did not respond either did not attend class the day the survey was taken or chose not to participate in the voluntary survey.

Of the students taking this course, 85 per cent were in their first year of law studies and were, on average, 20 years of age.

The students were asked how strongly they agreed with the following statement: ‘I found the clips to be helpful as a learning tool’. Of those who responded, 93 per cent (n = 103/111) either strongly agreed or agreed with the proposition. The remainder of students, seven per cent (n = 8/111), were neutral about whether the clips were helpful. Students were then asked to elaborate on their answer by explaining why the scripts were helpful or unhelpful. Several positive themes resulted from this question.

Students found it helpful to see (sometimes abstract) theory and rules put into practice. Some students expressly stated that visualisation/illustration of the process assisted them in understanding the theory and its application in practice. Some students observed that learning from a ‘real-life’ scenario would assist them in applying theory to real-life disputes in future. Another common theme was that the clips gave context to the theory and rules that students were learning. Some students commented that the use of actual parties involved in actual disputes made the subject matter more accessible. Others noted that it was easier to remember the theory/rules when they have been contextualised in a real-life scenario.

The students also found it helpful to follow the same scenario through a number of different topics — this assisted them to bring the subject together at the end of the course. Several students said that the questions based on the clips and post-clip discussions were very helpful in clarifying the issues.

Some students commented that the clips provided a good insight into the behaviour and different roles of lawyers, who not only appear in court but also at client meetings and in negotiations and mediation. This feedback reveals that the DVD helped at least some students understand the relationship between ADR and civil procedure. It also reinforces the importance of the clips in portraying not just a realistic depiction of lawyers but also a good model for students, in terms of ethical and professional behaviour.

To give us greater insight into the results of the survey and to assist us in improving the subject in the future, we asked students two questions about themselves.

First, we asked them if they thought they were visual or verbal learners. Whilst a traditional law course caters primarily for students who are verbal learners, the multimedia product was designed to appeal to those who are visual learners. A strong majority of the students who responded to this question perceived themselves to be at least partially visual learners: 83 per cent (n = 87/105). Only 17 per cent (n = 18/105) of students described themselves as verbal learners. These results appear to be consistent with Felder’s assertion that most students of tertiary age (at least in Western cultures) are visual rather than verbal learners.

Secondly, we asked the students what they based their understanding of legal practice on (eg. television, personal experience, etc). About a third of those who responded to this question, 32 per cent (n = 34/105), said that they based their knowledge of legal practice on what they saw on television (including US dramas, news and current affairs shows). A quarter, 25 per cent (n = 26/105), said that they based their understanding on personal experience (including work experience, family and friends and court attendances).

The students were asked if they understood what was going on in the clips. Of the 14 students (13 per cent, n = 11/105) who did not find the clips or some parts of them easy to follow, most explained that they found the first part of the third party application clip confusing. Some observed that the use of legalese made it difficult for them to follow this part of the clip. The first part of the clip did not deal with subject matter that the students needed to know and understand. It was designed to introduce students to a typical application day before a Master. The roll-call that occurs at such hearings is chaotic to observe, so it is not surprising that some students felt overwhelmed by the first part of the clip. The student feedback has highlighted to the instructors the need to preface the showing of the third party application clip with a short explanation as to its purpose.

The students were also asked how the clips could have been changed (if at all) to enhance their learning. More than half the students did not offer any suggestions for improving the clips when asked. The two main suggestions for improving the clips were better acting and shortening the clips. However, it is possible that these complaints were influenced by the students’ perceptions of how lawyers should look on screen. Given that over a third of students said that they based their knowledge of legal practice on what they saw on television, the influence of the slick lawyer on US shows has likely impacted upon the students perceptions of how a courtroom scenario should be played out. The clips are generally about 15–20 minutes long. Once again, students might have thought that they were unduly long because they are used to television shows having regular advertisement breaks.

In addition to the DVD, students were provided with a selection of court documents relevant to the dispute. Students who participated in the survey were shown some or all of the following court documents:

• the writ and statement of claim;

• a summons and affidavit seeking leave to file a third party notice; and

• documents relevant to the third party application.

The documents themselves are more accurately described as verbal rather than visual. It is useful, however, to discuss the use of the documents as they were intended to complement the DVD in providing a range of learning activities.

The students were asked how strongly they agreed with the following statement: ‘I found the precedent court documents helpful as a learning tool’. Of those students who responded to this question, 61 per cent (n = 58/95) of the students either strongly agreed or agreed with this proposition. Only five per cent (n = 5/95) of the students disagreed. The remainder of students, 34 per cent (n = 32/95) were neutral. Careful thought must be given as to how court and other precedent documents are used in the classroom before introducing them to the students, to ensure that they are not creating superfluous reading material.

On the whole, student and teacher satisfaction with the DVD was reasonably high and student survey responses suggest that the DVD was a useful learning tool.

The DVD did, however, involve a significant time commitment from those involved in the production process and took several years to complete. It will be several years before the authors have the energy to embark on such a project again. Anticipating the investment of time, money and energy that this project would involve, the producers were conscious of creating a DVD that would not date too easily. They were also mindful of creating a DVD that was flexible enough to be used in different course structures. The producers determined that the expense of a DVD project does not make it a good format to be utilised in assessment (other than the first time it is taught, where previous students of the subject do not exist). The primary objective of the DVD was therefore as a teaching tool rather than a means of assessment. No doubt, as the rules of practice and procedure change over time, the DVD may become dated in parts. While it may be possible to explain minor variations between the DVD and current practice to students in class, any major amendments to the civil procedure rules would necessitate the development of a new DVD in the future. Given the positive student feedback, the DVD will continue to be used in Dispute Resolution to reinforce what students learn from reading and class activities. The use of DVD clips and related court documents has proven to be an effective way to achieve the integration of theory and practice that is so important in a subject like Dispute Resolution.

One important feature of this approach to teaching civil litigation has been that students are able to appreciate that the final hearing of a dispute is only one aspect of the resolution of a civil dispute. Even for those few matters that make it to final hearing, the majority of time is spent on other processes, including negotiation, mediation and preliminary hearings. By revealing these processes to students, they are able to obtain a better understanding of the role of civil litigation in the overall administration of justice and can hopefully analyse the process of litigation with a more critical eye.