The Use of Role Plays in Alternative Dispute Training Clinical Education Thomas G. Giglione

The use of Role-Plays in Alternative Dispute Training in Pro Bono Clinical Education

Thomas G. Giglione

The World Mediation Organization

Author Note

Thomas G. Giglione is the current representative and lecturer for the World Mediation Organization www.world-mediation.org in Vietnam and Thailand. He worked as a commercial mediator for the Ministry of the Attorney General in Toronto, Canada for nine years.

Correspondence concerning this article should be addressed to:

Thomas G.Giglione | Mediation Services

Partner | Business Development Leader

ATS LAW FIRM

Hanoi Office: 6th Fl, ATS Tower, 252 Hoang Quoc Viet, Bac Tu Liem

Mobile: 84-(0)1265539748 | Tel: 84-4-3751 1888 | Fax: 84-4-3754 3888

Saigon Office: 16th Floor Saigon Tower, 29 Le Duan, District 1

http://www.world-mediation.org/

Tel: 84-8-3520 7764 | Fax: 84-8-3520 7604

Email: [email protected] | Web: www.atslegal.vn | Skype:dripmethod

Abstract

This paper offers personal reflections and observations of a pro bono

ADR (Alternative Dispute Resolution) seminar that I organized recently in

Hanoi, Vietnam. The two-day seminar and workshop, held on August 10th

and 11th 2013, proved very constructive and received positive feedback

from the vast majority of participants. As lecturer and district

representative for the World Mediation Organization, I obtained approval

from them to award participants a certificate of achievement and to make

the seminar part of a pre-requisite introductory course for the Certificate

in Mediation Program. This created an added-value incentive for

participants to attend and helped make the seminar a success. The layout

was an anomaly in clinical legal education, with because more than it

involved the participation over 150 people who were seated around

tables in groups of six to eight 6-8 people. The seminar/workshop made

extensive use of role-plays, mini lectures with visuals such as short video

clips, as well as Power Point Presentations. The latter used innovative

interactive polling software where participants were polled in real time,

using their smart phones. Video was also used as a learning tool to give

students immediate educational feedback. The workshop was held in a

conference room and local business people were invited to attend pro

bono. Participants included lawyers, law students, business people and

some government officials. In fact there were four times as many lawyers

in attendance than law students. (It was also my personal observation

that, for whatever reason, there were significantly more government

officials in attendance than indicated in the registration forms and thus

Appendix A, which shows the proportional make up of attendees, might

be partially skewed).

Keywords: clinical, legal, education, neuro, linguistic, programming, alternative dispute

resolution, mediation, negotiations, role-plays, legal, pro bono

“ Be the change you wish to see in the World” ~ ( Not) Gandhi Morton, B. (2011)

This quote reflects my idealistic opinion on what the aim should be when using role plays in education, especially in clinical legal education, involving ADR.

Moreover, it illustrates another facet of “tunnel vision” that exists in clinical legal education and education as whole. I think a more condensed visual interpretation would be to label it “funnel vision” because of the limited scope. The above quote is often attributed to Mahatma Gandhi. The problem with that premise, according to Morton in an opinion piece in the New York Times, B (2011), is that there is no historical evidence of Gandhi ever saying those words. Morton surmises that the quote is a thematic interpretation of what Gandhi might have said, condensed so it could fit on a bumper sticker. The myth has been perpetuated despite the truth, and the quote has become mimetic in the same manner as traditional pedagogic methodology.

This article reflects on the 2-day seminar that I organized in Hanoi, and traces recent commentary on the need for more collaborative and creative teaching methods that use improvisational role-plays in promoting pro bono ADR. Aronson, E. & Carlsmith, J. M. (1968) define role-plays as: ‘an |as-if' experiment in which the subject is asked to behave as if he [or she] were a particular person in a particular situation’.

I almost abandoned the idea of creating an innovative approach to teaching ADR Pro Bono CLE on several occasions. In retrospect, I am grateful that I persevered. My original thinking was that role-plays have an intrinsic value that appeals to the common sense. Innovative perspectives in clinical education, such as in Pearce's (2005) paper entitled Revitalizing the Lawyer-Poet: What Lawyers Can Learn From Rock and Roll, would seem to be a more extreme concept than using a community-based theatre approach to education. In his paper, Pearce connects the vision of democracy and rock and roll with lawyers and the legal education.

I later learned, in the preliminary stages of organizing this seminar, that using any kind of staged humor was a difficult concept for all those concerned to accept. The idea that humor and legal education could be combined is not readily accepted by academics. For example, one particular university in Hanoi, Vietnam completely lost interest in my project once they learned it would incorporate a community theatre approach in workshops, with entertaining and humorous improvisational role plays. I am in agreement with Levitt, N., & Linder, (2008) p.323 who outline the important role that humor plays in legal education.

I am often perplexed as to why current empirical research on effective models of education is often ignored by academia and institutions of higher learning.

Current pedagogical literature and practice regarding clinical legal education CLE in ADR implies using lecture-based methods of instruction, despite studies showing that such models are not the most effective. This type of training continues, despite important studies by Sullivan, W., Colby, A., & Wegner, J. (2007) from the Carnegie Foundation for the Advancement of Teaching. Their research specifically spelled out the inadequacies of lecture-driven methodology and made very clear recommendations for improving legal education.

Clinical education in ADR is rare, and when it does take place, involves law students attending the training with one or more practicing lawyers, arbitrators or mediators. These sessions are very exclusive, involving only a handful of participants given a scholarship as a reward for achieving high-test scores. Community-based, collaborative programs that focus on pro bono CLE are unusual. (Barron Vol 23: 335) Collaborative programs that involve improvisational simulations and role-plays are even more rare.

I would suggest that more impetus should be placed on organizing seminars similar to this one in Hanoi, with special emphasis on communicative NLP techniques. These could use a combination of the collaborative model in teaching and games-based simulation model in teaching clinical legal education in ADR.

The collaborative model involves students working together in small groups to accomplish a common learning goal. This is ideal when teaching ADR because the majority of conflicts that mediators deal with involve two people or a small group of people. Bhattacharjee, S. (2013) Pg.3 points out that games and simulation enable students to attempt to resolve disputes in a controlled environment and at the same time enjoy the process.

I do not believe that role-plays should entirely replace the traditional pedagogical one attorney-one case model. Special focus should be made on pro bono work that forms strategic alliances among community-based organizations, law students and lawyers. A synergistic approach to learning ADR is essential because of the complex dynamics of any dispute resolution process. The mindset in traditional educational models is to learn the theory first and then put theory into practice.

However, improvisational role plays improve understanding of concepts through interactive simulation and often put practice first so mistakes are made and used as tool to learn and, in the case of ADR, often minimize miscommunication. I often observed participants learning, identifying and emulating good techniques in others even if they were not yet able to put them into practice fully themselves. Self-evaluations combined with peer evaluations were also used to allow students to compare their subjective and objective perspectives of the role-plays. (Appendix B)

Participants also learn how to identify their own assumptions and styles and examine their effect on the mediation process. (Barron 2010) Vol. 23:325 cites evidence that enrolling non-litigators has tremendous merit in collaborative education. She also states that attracting lawyers to participate in innovative pro bono programs creates more interest in acquiring a longer commitment to pro bono service (Vol 23: 329).

At the seminar/workshop, I was the main speaker, and two prominent lawyers who specialized in arbitration were guest speakers, giving a short lecture and providing case studies. The workshop was held in a non-clinical setting at a conference room. Seating arrangements were such that even business people who attended seemed to participate and actively assist the law students, despite not having any legal background. Over 15 student volunteers from legal and non-legal backgrounds helped organize the seminar and assisted with translation. All visuals and documentation were in English and translated into Vietnamese.

I observed that group members shared experiences and made connections with each other from all age groups and all types of backgrounds, which doesn't always happen. Dominguez (2004) Vol: 323 notes that various primary missions of each organization are not always aligned because lawyers are for profit and organizations such as universities are not.

Entertaining role-plays spoken in Vietnamese were used to enact stories to explore ways of managing conflict. Reframed personal experiences were later shown to the rest of the group as dramatic material. Group members had complete control over most of the process, at a level that suited them. Behre, K. A. (2013) reviewed the relationship between motivation and being in control when describing altruistic behavior after the devastating tornado in Tuscaloosa Oklahoma. Presentations were never more than 20 minutes. Recent literature has shown that most human attention span is at its peak and lasts between 10-20 minutes before it diminishes Wilson, K. and Korn, J. H. (2007).

When the different NLP techniques were incorporated into various role play scenarios, I began to really appreciate the power of semantics. Participants viewed interactive PowerPoint presentations that introduced various ADR topics. Other short presentations discussed active listening; listening like a mediator; and how to talk like a mediator. The roles were custom designed by me because I believe that role-plays should be aligned according to the teaching philosophy of the trainer and the needs and cultural sensitivities of the participants. The learning outcomes are therefore much clearer. I have considered purchasing role plays from various sources but have resisted, mostly because they are too complex to use for an introductory ADR seminar.

In my experience, role-plays exhaust a lot of time and some groups reach an impasse and quit in frustration while other groups rapidly progress. To prevent this, some volunteers and myself acted as catalysts to insure that groups did not reach an impasse. The biggest problem was not the lack of enough volunteers, but lack of those trained in mediation to assist me. We had to be careful to allow time for a debrief after the role-play.

I am not completely convinced that all NLP techniques in the literature are effective tools in resolving disputes. The NLP techniques that I do employ come from my previous training in Canada and from scientific literature on semantics, such as work by Robert Dilts (1991). In addition, I am not yet completely convinced in the veracity or the value of some of the

core tenets of NLP such as Barkai (1981) proposes i.e. that humans use sensory language in three predefined categories, and we should be somehow mirror and be aware of such language. Auditory (I hear what you are saying); Visual (I see what you are trying to say); and Kinesthetic (I follow what you are saying).

Another learning point came from the challenges of communicating ideas and concepts in another language, using simultaneous translation. This especially occurred when I was trying to communicate NLP techniques such as the importance of semantics in communication. The participants were all Vietnamese, with various levels of English comprehension. I had paid particular attention to this obstacle in preparing for the seminar. I also made it clear at the start that the volunteer translators would translate concepts and not individual words, but that handouts would be provided in Vietnamese and a question and answer session would follow each presentation.

However, there were still challenges. On the first day, one particular episode will forever be burned into my long-term memory. It came when I was trying to illustrate, with the help of a translator, the use of semantics in mediation. I had prepared a PowerPoint presentation in both Vietnamese and English, illustrating some basic points that I felt made a lot of common sense. For example, the word “ but” in mediation negates anything before it and the mediator should be mindful when using such terms. A more appropriate or synonymous phrase to use is “ next time let’s do”. The use of the word “ don’t” also conjures up a negative image of what should not be done instead of the message that is to be communicated. It is not helpful to use such words, except in rare circumstances. Similarly, the word “should” creates an instruction and conjures feelings of guilt. The word “try” anticipates the possibility of failure and using questions with ‘why” implies that some sort of justification is needed: it is better to use “how”.

Both translators and participants had difficulty grasping these concepts. I was not getting my point across. I had thought the concepts were very simple and tried to use my skills as a mediator to rephrase what I was saying, but to no avail. This was exacerbated when one lawyer stood up and complained in Vietnamese about the quality of the translation. In the end, I quickly moved on to another presentation. At the time, I felt the incident to be the lowest point of the seminar but later learned the reasons why it occurred and how I could minimize them from ever occurring again.

I later discovered that the issue was not of preparedness but of not having a direct translation into Vietnamese that correlated with the grammatical structure of the English language. Some constructs in English simply do not exist or can only be translated after some lengthy detailed explanation prior to introducing the concept. This is not conducive to the fast pace of a seminar setting. Next time, I will hand out a glossary of terms and examples in both English and Vietnamese well in advance of the seminar. This will give participants ample time to understand complex concepts.

Conclusion

There is often debate between traditional and contemporary models of education. I believe that whatever the debate, it must take into account current literature by Sullivan, W., Colby, A., & Wegner, J. (2007) at the Carnegie Foundation for the Advancement of Teaching. This literature clearly illustrates the shortcomings in the case dialogue method of teaching compared to other disciplines. Granfield, R. (2007) believes this leads to conformity and

prioritizes analytical thinking, which bears little resemblance to the real world or the community at large. State, G., Alexander (2011) notes that this creates a disconnect between the community and the legal system and indeed the entire international political systems at large. The Carnegie study also revealed that assessment of student learning in legal education remains underdeveloped.

I believe evaluations should encompass various perspectives. There is great value in self and peer evaluation and non- peer or independent evaluations even from outside the legal profession (Appendix B &C). This type of assessment supports a student’s learning by giving constructive criticism rather than ranking students by one criterion.

The legal profession intrinsically and systematically involves more pragmatic skills than theoretical ones. Often there is debate about traditional and contemporary models of clinical legal education. Traditional models often rely on lectures: a model that has not changed much in over 600 years Frederick, P. (1986). However, Legal Clinical Education must evolve to not only implement recommendations from decade-old studies but supersede them in a proactive experiential way as opposed to creating one standardized system.

APPENDIX A

Figure 1. Background of registrants attending the PRO BONO ADR SEMINAR

AUGUST 10th-11th, 2013, Hanoi, Vietnam.

57%

14%

10%

1%

19%

LawyersLaw StudentsBusiness PersonsGovernment AgenciesOther

APPENDIX B

Đánh giá hòa giải viên Assessment of the Mediator

Giữ sự trung lậpMaintains neutrality

1. Không đứng về phía nàoDoes not side with any party:

Don’t Know Definite Shortcoming Need Improvement Do okay Do effectively Definite strength

2. Không đưa ra quan điểm của bản thân về vấn đề hoặc quá đề cao quan điểm của aiDoes not give own view on the issue(s) Respects each person’s perspective:


3. Không phán xét vấn đề đúng hay saiDoes not judge right or wrong of issue(s):


4. Giữ sự tinh tế và đưa ra những đáp trả thích hợp khi một bên cố lấn át bên kiaRemains sensitive to issues of power and responds appropriately when one party attempts to dominate another:

Don’t Know Definite Shortcoming Need Improvement Do okay

Do effectively Definite strength

5. Giữ sự kiên nhẫn với các bênRemains patient with all parties:


6. Sử dụng ngôn ngữ rõ ràng và chọn từ thích hợpUses clear language and appropriate word choice:


7. Điều khiển các giai đoạn mà không áp đặtControls session without domination:


8. Sử dụng ngôn ngữ cơ thể thích hợp và các dấu hiệu không được nói raUses appropriate body language and non-verbal cues:


9. Xác nhận và khuyến khích các bên trong suốt quá trìnhValidates and encourages parties throughout the process:

Don’t Know Definite Shortcoming Need Improvement

Do okay Do effectively Definte Strength

APPENDIX C

Assess Your Own Active Listening Skills as MediatorĐánh giá kỹ năng lắng nghe của hòa giải viên

DẪN DẮT CÂU CHUYỆN GETTING THE STORY

1.Tôi làm việc để giúp các bên dễ dàng đưa ra tiếng nói I work to put the speaker at ease:


2. Tôi sử dụng các câu hỏi mở để khuyến khích họ giải thích nhiều hoặc tỉ mỉ hơn

I use open-ended questions to encourage explanation or elaboration:


3. Tôi khiến các bên muốn kể câu chuyện của mình

I let the speaker tell the story as he or she wishes to tell it:


4. Tôi khiến cuộc đối thoại tập trung vào vấn đề của các bên I keep the conversation focused on the speaker’s issues:


5. Tôi bày tỏ sự tò mò thiên bẩm và hứng thú I demonstrate genuine curiosity and interest:


6. Tôi sử dụng ngôn ngữ cơ thể và các dấu hiệu không được nói ra để khuyến khích, nhận thức và thông cảm với người nói

I use body language and non-verbal cues to encourage, acknowledge and empathize with the speaker:


PHÁT HIỆN/ LÀM SÁNG TỎ Ý NGHĨAPROBING/CLARIFYING MEANINGS

7. Tôi rút ra hoàn cảnh và phạm vi của tình huống

I draw out the background and context of a situation:


8. Tôi khuyến khích người nói làm rõ rang những điều khó hiểu hoặc có ý nghĩa mơ hồ

I encourage the speaker to clarify ambiguous or vague meanings:


9. Tôi đặt câu hỏi để làm sang tỏ những mối quan tâm, vấn đề và sở thích của người nói I ask questions to clarify the speaker’s underlying concerns, issues or interests:


10. Tôi đặt ra những câu hỏi khiến người nói thể hiện quan điểm của mình, sự mong đợi, trở ngại và dự định của họ để so sánh với thực tế I ask questions that encourage the speaker to reflect on perceptions, assumptions, inferences and intentions as well as facts:


LẮNG NGHE NHỮNG CẢM XÚCLISTENING FOR EMOTIONS

11. Tôi nhận diện và hiểu được các biểu cảm I recognize and acknowledge emotions:


12. Tôi giữ sự điềm tĩnh và trả lời thích hợp khi họ có cảm xúc mạnh I keep my composure and respond appropriately when strong emotions are expressed:


13. Tôi tiếp nhận và đáp trả những dấu hiệu không được nói ra I pick up on and respond to non-verbal cues:


TÓM TẮTSUMMARIZING

14. Tôi tóm tắt và kiểm tra lại những thông tin mấu chốt và các yếu tố tình huống I summarize and check my understanding of the key facts or elements of the situation:


GIÁ TRỊ CỦA SỰ IM LẶNGVALUING SILENCE

15. Tôi được phép im lặng I allow for and value silence:


NÓI CHUNGGENERAL

16. Tôi điều khiển sự xao lãng bên trong và bên ngoài tốt

I handle internal and external distractions well:

Don’t Know Definite Shortcoming Need Improvement

Do okay Do effectively Definite strength

17. Tôi cố gắng tư duy mở, kể cả khi bị nghi ngờ và phán xét I try to keep an open mind, even when I have doubts or judgments:


18. Tôi tránh áp đặt sự giải thích, lịch trình và giải pháp của mình

I avoid pushing my own interpretation, agenda, or solution:


TÓM TẮTSUMMARY

Điểm mạnh của tôi là một người lắng nghe rất tốtMy strengths as an active listener:

2-3 kỹ năng tôi có thể :2-3 skills I can work on:

Xác định điểm mạnh rõ ràngDefinite Effective Strengths

References

Barkai, J. L. (1981). Sensory based Language In Legal Communication. The Practical Lawyer, 27(1). Retrieved from http://ssrn.com/abstract=1437266

Barron, L., Harrington-Steppen, S., Tyler, E. T., & Harrington-Steppen, S. (2010). Don’t Do It Alone: A Community-Based, Collaborative Approach to Pro Bono. Georgetown Journal of Legal Ethics, (23), 323–350.

Behre, K. A. (2013). Motivations for Law Student Pro Bono: Lessons Learned from the Tuscaloosa Tornado. Buffalo Public Interest Law Journal, XXXI.

Bhattacharjee, S. (2013). Usefulness of Role-Playing Teaching in Construction Education: A Systematic Review. In 49th ASC Annual International Conference Proceedings.

Cummings, S., Rhode, D., & Cummings, S. L. (n.d.). Managing Pro Bono : Doing Well by Doing Better. Fordham Law Review, 78(09).

Dilts, R., Hallbom, T., & Smith, S. (1991). Beliefs: Pathways to Health & Well-being (Forth.). Portland, Oregon: Metamorphous Press.

Dominguez, D. (2004). Community Lawyering. Utah Bar Journal, (09), 31–35.Frederick, P. (1986). The lively lecture—8 variations. College teaching, 34(2). Retrieved

from http://www.tandfonline.com/doi/pdf/10.1080/87567555.1986.9926766Granfield, R. (2007). Institutionalizing Public Service in Law School: Results on the Impact

of Mandatory Pro Bono Programs Robert. Buffalo Law Review, 54, 1355–1412. Retrieved from http://ssrn.com/abstract=1081687

Graves, E. A. (2008). Is Role-play an effective Teaching approach? Levit, N., & Linder, D. O. (2008). Happy Law Students, Happy Lawyers. Syracuse Law Review, 58, 1–27.

Morton, B. (2011, August 30). Falser Words Were Never Spoken. NYTimes.com, pp. 11–13. New York. Retrieved from www.nytimes.com/2011/08/30/opinion/falser-words-were-never-spoken.html

Pearce, R. G. (2005). Revitalizing the Lawyer-Poet: What Lawyers Can Learn From Rock and Roll. Widener Law Journal, 14, 907–922. Retrieved from http://ssrn.com/abstract=908897

Prince, M. (2004). Does active learning work? A review of the research. Journal of engineering education, 93(July), 223–231. Retrieved from http://onlinelibrary.wiley.com/doi/10.1002/j.2168-9830.2004.tb00809.x/abstract

Scully-Hill, A., Lam, P., & Yu, H. (2010). Beyond Role Playing : Using Drama in Legal Education. Journal of Legal Education, 60(1), 147–156.

State, G., Alexander, C. S., & Ev, M. D. L. R. (2011). Learning to Be Lawyers: Professional Identity and the Law School Curriculum. Michigan Law Review, 70(465). Retrieved from http://ssrn.com/abstract=1844691

Sullivan, W., Colby, A., & Wegner, J. (2007). Educating lawyers: Preparation for the profession of law. The Carnegie Foundation for the Advancement of Teaching. Retrieved from http://books.google.com/books?hl=en&lr=&id=8vvL6xHK4kQC&oi=fnd&pg=PR9&dq=Educating+Lawyers+Preparation+for+the+Profession+of+Law&ots=HNZIoU2Rfs&sig=8hUOKTFEAkB5qNEyjPv4ACGNrfY

Documents

The Use of Role Plays in Alternative Dispute Training Clinical Education Thomas G. Giglione