Teaching Professional Ethics to Lawyers and Mediators

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TEACHING PROFESSIONAL ETHICS TOLAWYERS AND MEDIATORS USING ACTIVE

LEARNING TECHNIQUES

Paula M. Young

TABLE OF CONTENTS

I. INTRODUCTION…………………………………………..…..129II. OVERVIEW OF ARTICLE……………………………………...131III. BARRIERS TO LEARNING ABOUT PROFESSIONAL

ETHICS…...132A. Blame the

Students?.........................................................132

B. Pacification of Students by the Pre-Law and Law School Curriculum……………………………………………...134

C. The Law School Environment…………………………..136D. Implications for Teaching Mediation Ethics to New

and Experienced Mediators………………………………....139IV. POSSIBLE APPROACHES TO TEACHING PROFESSIONAL

ETHICS……………………………………………………….139A. Possible Learning Objectives of a Professional Ethics

Course…………………………………………………..140

Associate Professor at the Appalachian School of Law (ASL). Iteach negotiation, mediation, arbitration, dispute resolutionsystem design, and insurance practice. For twenty years, Iserved as a commercial dispute litigator, mediator, andarbitrator. I earned degrees from Washington University (B.A.,J.D.) and from the University of Missouri School of Law (LL.M.).Dean Wesley Shinn awarded the summer research grant thatsupported this research. I thank and appreciate three wonderfulresearch assistants, Sean Kennally, Mollie McCutcheon, and SaraBeth Montgomery. Finally, I appreciate the help provided byBrenda Rice.

127

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128 SOUTHWESTERN LAW REVIEW [Vol. 40

B. Stages of Learning in the Context of Professional Ethics Training………………………………………………...144

C. Designing an Active (or Interactive) Learning Environment………………………………………….…146

D. Course Design…………………………………………..147E. Teaching Methodologies………………………………..148

1. Commitment to Teaching Professional Ethics Effectively…………………………………………..148a. Commitment to Teaching Legal Ethics

Effectively………………………………………148b. Commitment to Teaching Mediation Ethics

Effectively………………………………………1492. Teaching Methods Relying Less on

Active Learning…………………………………………….1533. Teaching Methods Relying on Active

Learning……155a. Discussion-Based Method………………………155b. Demonstrations…………………………………157c. Problem-Based Method…………………………157d. Simulations and Role-plays……………………..158e. Live Client Work or Externships………………..163f. Other Teaching Methods………………………..164

4. Methods for Teaching Mediation Ethics……………165

F. Assessing Student Learning…………………………….1681. Best Practices for

Assessment………………………1682. Assessment Methods in the

Professional Ethics Course………………………………………………169a. Exams…………………………………………...169b. Performance Evaluations……………………….171c. Weekly Papers or Student Journals…………….172d. Class Participation……………………………..172e. Other Methods of Assessing Student

Learning………………………………………..173V. FUTURE ARTICLES ON TEACHING MEDIATION

ETHICS……..173VI. CONCLUSION………………………………………………...174

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2010] TEACHING PROFESSIONAL ETHICS 129

I. INTRODUCTION“Professional ethics! Oh my god, how bor . . .

ing!” As a law student, I recall thinking thisthought nearly every time I faced yet another hourof my professional ethics course.1 As a practicinglawyer, I recall dreading my attendance, everythree years, at continuing legal educationprograms that fulfilled my ethics requirement andthereby ensured my continued existence as alicensed attorney.2 As a new law professor though,I experienced both elation and surprise when a lawjournal editor asked me to join several high-profile colleagues at a symposium on mediation1 ?. My favorite professor in law school, ProfessorEdward J. Immwinkelreid, taught the class. In retrospect, headopted active learning techniques long before the academy begantalking about them much. Accordingly, this comment in no wayreflects on the skill of Professor Immwinkelreid or his passionfor the topic. In fact, I clearly remember the day when hescolded the class, in a fairly angry tone, for our bad attitudeabout the subject. He warned us about our duties to our futureclients, the courts, and the profession. After that, I remembersitting taller in my seat and taking the course more seriously. 2 ?. MO. S. CT. R. 15.05(f)(2008) (requiring at leastthree hours of professionalism, ethics, or malpractice preventiontraining within a specified three-year reporting period).

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ethics.3 As a scholar, I have enjoyed readingevery (yes, every) published ethics opinionrelating to mediation ethics.4

As a member of the Standing Committee onMediator Ethical Guidance of the American BarAssociation’s Section of Dispute Resolution, Ihave taken pleasure in the intellectual challengeof writing the first drafts of several advisoryethics opinions that respond to inquiries frompracticing mediators.5 In that same role, I havewaited, with a little trepidation, for the pre-publication scrutiny of the text of those draftopinions by the far more experienced members ofthat committee.6 In my role as a law schoolprofessor, I structure my mediation practicumaround the core values of mediation and infuse a3 ?. Presenter, Mediator Malpractice: Preventative Checklist forMediators or Roadmap for Tort Lawyers, OHIO STATE J. ON DISP. RESOL. (Jan. 19-20, 2005). I still do not know why the student editor sponsoringthe event even asked me to come. I suspect she found the onlyarticle I had written at that time on legal ethics in the contextof alternative dispute resolution. See generally Paula M. Young, ADR—Ethically Speaking, MO. LAWYERS WEEKLY, July 31, 2000, at 16A, availableat http:/www.mediate.com/articles/young2.cfm.4 ?. The Ethics Advisory Opinions Database Subcommitteeof the Standing Committee, which I co-chaired for a year,assembled, in an easily accessed database, ethics advisoryopinions issued in the few states providing them relating tomediation. It also assembled and posted the disciplinarygrievances filed against mediators in states with mediatorgrievance systems. See ABANET.ORG,http://www.abanet.org/dispute/clearinghouse.html (last visitedDec. 1, 2010). 5 ?. The twelve-member committee also includes myselfand former-Dean James Alfini (South Texas College of Law), Prof.Jay Folberg (University of San Francisco), Prof. Maureen Laflin(University of Idaho College of Law), Roger Wolf (ProfessorEmeritus, University of Maryland School of Law), Hon. EllenSickles James (retired), Prof. Susan Exon (University of La VerneCollege of Law), Susan Yates, Michael Young, Roger Deitz, andLarry Watson. Nancy Lesser serves as chair of the committee.See Committee on Mediator Ethical Guidance, ABANET.ORG,http://www.abanet.org/dch/committee.cfm?com=DR018600 (Dec. 1,2010) [hereinafter A.B.A., Mediator Ethical Guidance]. 6 ?. For access to the opinions of this committee, seeA.B.A., Mediator Ethical Guidance, supra note 5.

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discussion of ethics throughout the role-plays,exercises, and de-briefing discussions. As amediator, my deeper understanding of mediationethics has made me a more skillful and,surprisingly, more patient mediator. As a memberof Virginia’s Mediator Review Committee, I heard anddisposed of complaints filed against certifiedmediators.7 As a member of Virginia’s MediationEthics Committee, I helped revise Virginia’smediator qualification rules, mediation ethics code,and mediator grievance procedures.8 As a member ofVirginia’s mediation community, I have taken greatjoy in sharing with colleagues in workshopssponsored by the Virginia Mediation Network(“VMN”) the pride I have in our mediationcommunity and the enthusiasm I have developed overthe last ten years for the theory and applicationof mediation ethics.9

7 ?. The five-person Mediator Review Committee reviewscomplaints filed by unhappy parties against mediators. Virginiais only one of less than a dozen states in the U.S. with a systemfor disciplining mediators working in court-connected mediationprograms who violate the mandatory standards of ethics formediators. For a description of the regulatory infrastructurecreated for Virginia mediators, see Paula M. Young, Take it or Leave it.Lump it or Grieve it: Designing Mediator Complaint Systems that Protect Mediators,Unhappy Parties, Attorneys, Courts, the Process, and the Field, 21 OHIO ST. J. ONDISP. RESOL. 721, 814-30 (2006) [hereinafter Young, Take it or Leave it].8 ?. The seven-member committee included myself, LawrieParker, the Executive Director of Piedmont Dispute ResolutionCenter, Jeanette Twomey of Mediation Works, John McCammon,founder of the McCammon Group, and lawyer–mediators LawrenceHoover, Samuel Jackson, and Frank Morrison. Three of thecommittee members, including myself, serve or have served on theVirginia Supreme Court’s Mediator Review Board. Messrs. Hoover,Jackson, Twomey, and Morrison teach mediation at Virginia lawschools. The committee met over a three-year period at theinvitation of the Director of the Dispute Resolution Services,Department of Judicial Services, Office of Executive Secretary ofthe Supreme Court of Virginia. 9 ?. See VIRGINIA MEDIATION NETWORK,http://www.vamediation.org. At these workshops, I share themicrophone with well-trained mediators in the audience whocomprise a very vibrant mediation community.

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What explains this change in my own perspectiveabout professional ethics? Can we create the samelevel of interest and enthusiasm for mediationethics in newly trained mediators? What barriersto learning do we face as instructors who hope toconvey to new mediators the core values ofmediation? What teaching techniques can we use toenliven the learning experience? And, how do weknow if the trainees have learned the values wewish to impart?

II.OVERVIEW OF ARTICLEPart III of this Article briefly discusses the

barriers that exist to learning professionalethics in the law school environment. Part IVconsiders the possible approaches to teachinglegal and mediation ethics to new and experiencedpractitioners. My research reveals only onearticle on techniques for teaching mediationethics.10 Otherwise, mediation instructors coverthe topic from time to time at the major disputeresolution conferences.11 In the face of this gapin the literature, I have considered by analogythe articles about active learning in law schoolcourses designed to teach legal and judicialprofessional ethics.12 Part V discusses the series10 ?. Mary Thompson, Teaching Ethical Competence, 10 DISP.RESOL. MAG. 23, Winter 2004 (describing several types ofinteractive training exercises designed to teach mediationethics) [hereinafter Thompson, Teaching Ethical Competence].11 ?. See infra note 121. 12 ?. For a discussions of active learning techniques, seegenerally CHET MEYERS & THOMAS B. JONES, PROMOTING ACTIVE LEARNING:STRATEGIES FOR THE COLLEGE CLASSROOM (1993) (including chapters oninformal small groups, cooperative student projects, simulations,case studies, guest speakers, and the effective use oftechnology); WILLIAM M. TIMPSON ET AL., TEACHING AND PERFORMING: IDEASFOR ENERGIZING YOUR CLASSES (1997) (including chapters on lecture;questions, answers and discussions; energy, creativity, andspontaneity; and three chapters on using theater techniques andimprovisation in class); Using Active Learning in College Classes: A Range of

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of articles I have planned on the use of activelearning to teach the core values of mediation:mediator impartiality; party self-determination;confidentiality; and quality of the process. PartVI concludes that we can create enthusiasm instudents for professional ethics by providingwell-designed training programs that use activelearning techniques.

III. BARRIERS TO LEARNING ABOUT PROFESSIONAL ETHICSScholars agree that the law school system for

imparting legal ethics and the values ofprofessionalism works poorly. The source of thatfailure remains in dispute. The mediator in me

Options for Faculty (Tracey Sutherland & Charles Bonwell eds., Jossey-Bass No. 67, Fall 1996) (pamphlet) (containing chapters on theactive learning continuum; providing structure (the criticalelement); enhancing the lecture; using writing exercises asactive learning; using electronic tools to promote activelearning; using cooperative learning; and emerging issues inactive learning).

For a discussion of active learning techniques usedto teach Millennial generation students, see J. BRADLEY GARNER, ABRIEF GUIDE FOR TEACHING MILLENNIAL LEARNERS (2007). For a discussion ofself-regulated learning, see also BARRY J. ZIMMERMAN, SELF-REGULATEDLEARNING: FROM TEACHING TO SELF REFLECTIVE PRACTICES (1998); Laurel C.Oats, Beating the Odds: Reading Strategies of Law Students Admitted throughAlternative Admissions Programs, 83 IOWA L. REV. 139 (1997) (finding thatsuccessful students—those who out-performed their “indicators”—were self-regulated learners who engaged in “active learning”techniques; finding that those who performed at or below theirindicators were passive learners); Michael H. Schwartz, TeachingLaw Students to be Self-Regulated Learners, 2003 MICH. ST. DCL L. REV. 447,484-87, 505 (2003).

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wants to suggest that students,13 professors,14 lawschools,15 and the law practice environment16 allmake a contribution to the potential skepticismand ennui students show towards the subject oflegal ethics and professionalism as taught in thetypical law school format.

13 ?. Some scholars believe that we fail successfully toteach ethics and professionalism because students are young,inexperienced, immature, unimaginative, passive, lazy, exam-oriented, substance- (versus value-)oriented, indifferent, tooeasily bored, and frankly, unprofessional. See, e.g., Douglas N.Frenkel, On Teaching Judgment, 12 LEGAL EDUC. REV. 19, 23 (2001)(describing law student resistance to ethics courses as“legendary”); Lois R. Lupica, Professional Responsibility Redesigned:Sparking a Dialogue Between Students and the Bar, 29 J. LEGAL PROF. 71, 71-72n.4 (2004-2005); Alan M. Lerner, Using our Brains: What Cognitive Scienceand Social Psychology Teach us about Teaching Law Students to Make Ethical,Professionally Responsible, Choices, 23 QUINNIPIAC L. REV. 643, 703-04 (2004)[hereinafter Lerner, Using our Brains]. 14 ?. Most professors teaching legal ethics andprofessionalism are at later life-cycle phases and at later egodevelopment stages. Accordingly, they focus on the toughquestions, the ambiguity, and the broader issues ofprofessionalism. Professors aged forty-five to fifty-five haveentered the “Settling Down” life-cycle phase that brings with it“increased feelings of self-awareness and competence.” Theyexhibit “Autonomous” or “Integrated” stages of ego development.At these stages of ego development, a person engages in increasedconceptual complexity, looks for complex patterns, toleratesambiguity, seeks to broaden the scope of discussions, and appliesmore analytical objectivity. Linda Morton et al., Not Quite GrownUp: The Difficulty of Applying Adult Education Model to Legal Externs, 5 CLINICAL L.REV. 469, Appendices I & II (1999). Most law school professorsare between the ages of forty-six to sixty-five years old. See2007-2008 AALS Statistical Report on Law Faculty, AALS STATISTICAL REPORT ON LAWFACULTY, available athttp://www.aals.org/statistics/2008dlt/gender.html.15 ?. See infra notes 23-51 and accompanying text.16 ?. Morton et al., supra note 14, at 514; Lerner, Usingour Brains, supra note 13, at 683 n.161 (“I have heard of only onelaw firm, during one hiring season, that considered anapplicant’s responses to questions of professionalresponsibility, during the hiring process, or paid particularattention to the applicant’s grade in that course.”)

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A. Blame the Students?

Students, because of life-cycle phase,17 egodevelopment,18 cognitive development,19 andgenerational characteristics20 may resist the rich,but ambiguous,21 concepts surrounding legal ethics.Most likely, they do not have the professionalexperience to put the lessons in context.22 An in-depth discussion of these factors goes beyond thescope of this Article. 17 ?. Morton et al., supra note 14, at 498. See generallySTEPHEN D. BROOKFIELD, UNDERSTANDING AND FACILITATING ADULT LEARNING: ACOMPREHENSIVE ANALYSIS OF PRINCIPLES AND EFFECTIVE PRACTICES 1-3 (1986); K.PATRICIA CROSS, ADULTS AS LEARNERS (1981); GORDON G. DARKENWALD & SHARONB. MERRIAM, ADULT EDUCATION: FOUNDATIONS OF PRACTICE 86-93 (1982).18 ?. Morton et al., supra note 14, at 498.19 ?. LAWRENCE KOHLBERG, THE PSYCHOLOGY OF MORAL DEVELOPMENT: THENATURE AND VALIDITY OF MORAL STAGES (ESSAYS ON MORAL DEVELOPMENT, Vol. 2)(1984) (suggesting that as students mature, they experiencestages of moral development that reflect the moral reasoningindividuals apply in resolving moral dilemmas); Steven I.Friedland, How we Teach: A Survey of Teaching Techniques in American LawSchools, 20 Seattle U. L. Rev. 1, 9-12 (1996) [hereinafter How weTeach] (describing nine positions of cognitive development thatapply to law students); Steven Hartwell, Promoting Moral DevelopmentThrough Experiential Teaching, 1 CLINICAL L. REV. 505, 505 (1995) (statingthat “the capacity to reason morally develops in identifiablestages as the result of an interaction between an individual’scognitive structure and certain significant life experiences” anddescribing a series of semester-long legal ethics courses taughtexperientially at the University of San Diego School of Law).20 ?. SERVING THE MILLENNIAL GENERATION (Michael D. Coomes &Robert DeBard eds., 2004); NEIL HOWE & WILLLIAM STRAUSS, MILLENNIALS GOTO COLLEGE 107-11 (2003) [hereinafter MILLENNIALS GO TO COLLEGE]; NEILHOWE & WILLIAM STRAUS, MILLENNIALS RISING: THE NEXT GREAT GENERATION 143-44(2000) [hereinafter THE NEXT GREAT GENERATION]. Most law schoolprofessors are members of the Baby Boomer or early Gen-Xgenerations, while most current law students are part of theMillennial generation. See AALS Statistical Report on Law Faculty, supranote 14, at 13-14. See generally WILLIAM STRAUSS & NEIL HOWE,GENERATIONS: THE HISTORY OF AMERICA’S FUTURE, 1584 TO 2069 (1991)[hereinafter THE HISTORY OF AMERICA’S FUTURE].21 ?. Younger learners at earlier stages of egodevelopment show discomfort with ambiguity. Many law studentspursued a legal education because they expected it to provideclear, predictable rules—substantive, procedural, and ethical.Studies of individuals attracted to law school reveal that thestudents tend to be more fact-oriented and emphasize analysis,logic, and decisiveness. They have difficulty looking at broader

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B. Pacification of Students by the Pre-Law and Law School Curriculum

Pre-law education could also set upexpectations of law students that make it evenmore difficult for law professors to use richer,active-learning formats to teach professionalethics. Professor Michael Richmond argues thatthe pacification process begins early forstudents. Pre-law education promotes roteissues and discussing matters of increased conceptual complexity.Instead, younger students at earlier ego development stages wantthe “right answer,” or the right way to do something. They wantthe skills they will need to survive, succeed, and feelcompetent. Only later stages of ego development permit people tomake the distinction between process and outcome and approachproblems with more objectivity. Morton et al., supra note 14, at499, 502, 508, 510. Characteristics of the Millennial generationmay reinforce these tendencies. See sources supra note 19; see alsoJames B. Taylor, Law School Stress and the “Deformation Professionelle”, 27 J.LEGAL EDUC. 251, 264 (1975).

Students with these needs prefer an information-giving lecture on a high risk Socratic teaching method. Theyalso may prefer lecture on a more chaotic active learningexercise from which they must draw conclusions and principles.Law students’ undergraduate experience may also bias them infavor of formal approaches to learning, such as lecture. See infranotes 23-35 and accompanying text. Morton and her colleaguesexplain that, in the externship program they supervised, theyoften asked students to examine moral dilemmas derived fromreadings, class discussions, and clinical experiences. Theproblems are “complex, cause discomfort[,] and are resisted bythe students.” Morton et al., supra note 14, at 506 & nn.133,161.22 ?. Robert P. Burns, Teaching the Basic Ethics Class throughSimulations: The Northwestern Program in Advocacy and Professionalism, 58 LAW &CONTEMP. PROBS. 37, 38 n.4 (1995) [hereinafter Teaching the Basic EthicsClass] (“Practicing lawyers understand the context of the practicein which ethical issues arise and are themselves deeply involvedin that practice. Legal education is disengaged from thatpractice. Thus students have neither the imagination nor theincentives to appreciate the importance of ethical issues”; alsodescribing an eighty-student legal ethics course taught withsimulations involving faculty members, local attorneys,professional actors, and drama students at Northwestern LawSchool); Lupica, supra note 13, at 72 (“Students are not yet inproximity to the context in which the professional responsibilityissues arise, and often it is difficult for them to relate to theconflicting tensions faced by the hypothetical lawyers; thus,

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memorization and fact regurgitation on exams.23

Professor Richmond believes that law students needto first learn the proper way to learn in lawschool, especially for law professors who useactive learning techniques.24 He argues that theydo not have the skills to benefit from teachingtechniques other than lecture.25

Harvard Professor Bruce Patton, of Getting to Yesfame,26 advised at a 2007 teaching conference thatstudents resist active learning in law schoolbecause the first-year curriculum “infantilizes”them.27 He even suggested that family systems

they fail to see the course’s relevance. The fact is that thecontext of lawyering is too foreign for students to have fullydeveloped a moral sensitivity (which is the foundation of moraldecision-making) to the issues of professional responsibility.”);Christine Venter, Encouraging Personal Responsibility—An Alternative Approachto Teaching Legal Ethics, 58 LAW & CONTEMP. PROBLEMS 287, 294 (1995)(suggesting that law students “do not yet have a vested interestin how the profession is viewed and what their contribution is tothat appearance”). See also Brook K. Baker, Beyond MacCrate: The Role ofContext, Experience, Theory, and Reflection in Ecological Learning, 36 ARIZ. L. REV.287, 291 (1994).23 ?. Michael L. Richmond, Teaching Law to Passive Learners: TheContemporary Dilemma of Legal Education, 26 CUMB. L. REV. 943, 955 (1995-1996). Writing in 1995, Richmond may have been talking aboutGenXers. We do know that Millennials aged six to eight reportedin 1997 that they did 123 minutes of homework per night.Earlier, in 1981, the same-aged GenXer students reported doingforty-four minutes of homework per night. THE NEXT GENERATION, supranote 20, at 159.24 ?. Richmond, supra note 23, at 944.25 ?. Id. at 955.26 ?. ROGER FISHER, WILLIAM URY & BRUCE PATTON, GETTING TO YES:NEGOTIATING AGREEMENT WITHOUT GIVING IN 40-41 (2d ed. 1991).27 ?. Robert Bordone, Kelly O. Brown & Bruce Patton,A.B.A. Section of Dispute Resolution, Ninth Annual Conference,ADR in Bloom, Session G11: Fitting the Pedagogy to the Purpose: Intentionality &Creativity in Teaching Negotiation, in Washington, D.C. (April 25-26,2007). See also James E. Groccia et al., Creating Interactive LearningEnvironments, Program for Excellence in Teaching, University ofMissouri School of Law in Columbia, Mo. (Sept. 1996) (on filewith author), at 1-2, 7-8 (suggesting that students resist activelearning because they doubt their own knowledge and competence,fear deviating from approaches with which they have had pastsuccess, and show discomfort with their own social skills in aclassroom situation); Richmond, supra note 23, at 955 (“Most law

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dynamics or power dynamics could explain thepacification of law students.28

Like Professors Patton and Richmond, ProfessorMorton and her colleagues complain that thetypical law school teaching methodology “focuseson intimidation and passive learning.”29 Theysuspect that students come to expect that all“important” teaching happens in the same way.30

These messages undercut Morton’s efforts toencourage students to enter into “trusting,cooperative relationships with classmates,instructors, and others.”31 The dominant style oflaw school teaching—lecture32 and the Socratic

students simply do not have the skills necessary to profit frommethods of instruction other than lectures . . .[F]aculties . . . preferred the power and control they gainedfrom adoption of lecturing as their teaching method.”); Note,Making Docile Lawyers: An Essay on the Pacification of Law Students, 111 HARV. L.REV. 2027, 2027 (1998) [hereinafter Making Docile Lawyers] (“[B]y thesecond (2L) year, a surprising number of Harvard Law studentscome to resemble what one professor has called ‘the walkingwounded’: demoralized, dispirited, and profoundly disengaged fromthe law school experience . . . [students] become subdued,withdrawn, and uncertain of their own self-worth . . . .”). Theundisclosed author attributes this passivity to a high student-faculty ratio that undermines greater opportunities for feedbackfrom faculty, large class sections, the use of semester-end examsas the sole means of measuring student performance, the stigmastudents feel after receiving average grades despite theirhistory of high scholastic performance as undergraduate students,and the emphasis on a corporate career upon graduation. 28 ?. Bordone, Brown & Patton, supra note 27; see alsoCatherine W. Hantzis, Kingsfield and Kennedy: Reappraising the Male Models ofLaw School Teaching, 38 J. LEGAL EDUC. 155, 156, 158 (1988)(discussing Kennedy’s theory of class room oppression based onpower distance, hierarchy, and aggression); Orin S. Kerr, TheDecline of the Socratic Method at Harvard, 78 NEB. L. REV. 113, 118-22(1999).29 ?. Morton et al., supra note 14, at 512. (One legalscholar believes that pre-law education promotes passivelearning, especially rote memorization. He suggests studentssuffer culture shock when asked to engage in more active learningin law school). See Richmond, supra note 23, at 957. 30 ?. Morton et al., supra note 14, at 513.31 ?. Id.32 ?. DONALD A. BLIGH, WHAT’S THE USE OF LECTURES? (2000).

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method33 —also leaves students unprepared foractive learning approaches like simulations, groupdiscussions, group projects, or other types ofcollaborative problem-solving exercises.34

Students find the shift to a self-directed, activemode of learning difficult after the exposure overseveral semesters to passive learning techniques.35

C. The Law School Environment

The law school environment also contributes tothe lack of student interest in professionalethics.Law schools, facing higher operating costsand increasing demands on their financial andhuman resources, may simply opt to teach legalethics in the large-class format with the simpleobjective of helping students pass the MPRE. Theaccreditation standards of the American BarAssociation (“ABA”) make no meaningful demands on

33 ?. See, e.g., Friedland, How we Teach, supra note 19, at 3,28-29 (finding that ninety-four percent of professors respondingto a survey used lecture “some of the time” with sixteen percentsaying they used it “most of the time” in upper level courses;ninety-seven percent of professors responding to a survey usedthe Socratic method (as they defined it) at least some of thetime in first year classes; with thirty percent using it “most ofthe time” and forty-one percent using it “often”; only fivepercent of responding professors “rarely” used it).34 ?. Id. at 513. However, Howe & Strauss assert thatMillennials are familiar with these teaching techniques and mayprefer them. MILLENNIALS GO TO COLLEGE, supra note 20, at 102.35 ?. William P. Quigley, Introduction to Clinical Teaching for theNew Clinical Law Professor: A View from the First Floor, 28 AKRON L. REV. 463, 487(1995), cited in Morton et al., supra note 14, at 513. Quigleyalso says that the average law student does not have the “adultcapacity to learn through critical scrutiny of . . . values,assumptions and beliefs.” Fran Quigley, Seizing the Disorienting Moment:Adult Learning Theory and the Teaching of Social Justice in Law School Clinics, 2Clinical L. Rev. 37, 47 (1995) [hereinafter Quigley, Seizing theDisorienting Moment]. He also says they are not prepared for aneducational experience that asks them to “think and act inopposition to the dominant culture.” Quigley, Seizing the DisorientingMoment, at 47-48, quoted by Morton et al., supra note 14, at 500n.116. See also Making Docile Lawyer, supra note 27, passim.

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schools to do it any other way.36 Professor AlanLerner also says:

One reason for our persistence on our current pathis, I believe, that we have not incorporated intoour teaching scientific discoveries over the pasttwo or three decades about how people learn, whatinhibits and enhances their effective use of whatwe teach, and the effective use of learning toaddress emerging problems, particularly when thoseproblems are professionally threatening to[people].37Professor Howard Lesnick notes that the

decision by law school administrators about thecourses offered and the subjects covered “teaches[students] a powerful implicit lesson that thematters not included are unimportant.”38 Thus, iflaw schools confine the discussion of ethics to atwo- or three-credit course, it may implicitlytell students that the subject is not veryimportant. Professor Lerner suggests that thepedagogical focus in most first-year classes onappellate opinions and effective legal arguments“without regard to the moral and ethicalconsequences of [lawyers’] actions” undermines astudent’s motivation to embed “ethical and moralconsiderations in their professional behaviors as

36 ?. See infra notes 101-106 and accompanying text.37 ?. Lerner, Using our Brains, supra note 13, at 656; see alsoFrenkel, supra note 13, at 31, 34-35, 39-38 (teaching ethics withreal world dilemmas, discussion, and role-plays); Eleanor W.Myers, Teaching Good and Teaching Well; Integrating Values with Theory andPractice, 47 J. LEGAL EDUC. 401, 403 (1997) (teaching a coursecovering trusts and estates, professional responsibility,interviewing, counseling, negotiating, and drafting); David Luban& Michael Millemann, Good Judgment: Ethics Teaching in Dark Times, 9 GEO.J. LEGAL ETHICS 31, 40 (1995) (discussing clinic-based ethicsclass); Symposium, Teaching Ethics, 58 LAW & CONTEMP. PROBS.(Summer/Autumn 1995) (making available over twenty articlesdiscussing experimental ways to teach legal ethics in lawschool).38 ?. Howard Lesnick, Infinity in a Grain of Sand: The World ofLawyering as Portrayed in the Clinical Teaching Implicit in Law School, 37 UCLA L.REV. 1157, 1159 (1990).

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lawyers.”39 In other words, students may learnfrom this pedagogical approach that winning iseverything and should happen at the expense ofprofessionalism, civility, and ethics. He arguesthat “students learn only tools for their role asinstrumentalist lawyer, and not those that supporttheir pro-social intuitions.”40

Law school evaluation can also play a role indetermining how students interact with the subjectmatter. Professor Friedland says:

While class is an opportune place for dialogue andanalysis, it becomes apparent to students thatcreativity beyond the exam is irrelevant at bestand even deleterious to the assessment ofperformance . . . . In class, the shadow cast byexaminations shifts attention to the teacher’sagenda and away from students [who are] makingcomments.41Moreover, if doctrinal and skills instructors

do not discuss legal ethics and professionalism inthe context of contracts, property, civilprocedure, criminal law, evidence, and otherfirst- or second-year courses, students can easilydismiss their importance to effective lawyering.Professor Friedland agrees, saying:

Ethical components of basic courses are often leftuntested, sending the message that these issuesare of secondary importance. Further, the subjectmatter is relegated to the contents of a singleupper-level course, with few credits and subjectto examination like any other class. Thus, itlacks the primacy of a multiple credit first-yearclass or the uniqueness of a simulation course.42Professor Bruce Green has recommended that law

schools teach legal ethics in the context of39 ?. Lerner, Using our Brains, supra note 13, at 686.40 ?. Id. at 691.41 ?. Steven Friedland, A Critical Inquiry Into the Traditional Uses ofLaw School Evaluation, 23 PACE L. REV. 147, 168 (2002) [hereinafterFriedland, Law School Evaluation]. 42 ?. Friedland, Law School Evaluation, supra note 41, at 182.

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doctrinal classes rather than confine it to asurvey class.43 This would give students theopportunity to make decisions in context and wouldalso give them additional time to developprofessionalism skills.44 Professor Russell Pearcerecommends that law schools make the legal ethicscourse a required, three-credit first-year, first-semester course, offer an upper level course aswell, and infuse ethics into all other courses.45

Research indicates that the transfer of knowledgefrom one situation to the next depends on thecontext in which the student first learned theknowledge.46 Thus, the context in which a lawschool offers its legal ethics and professionalismcourses may deeply affect a student’s ability tocomplete the four steps in learning discussedbelow.47

Professor Lupica also notes that the law schoolenvironment undermines the ability of many43 ?. Bruce A. Green, Less is More: Teaching Legal Ethics in Context,39 WM. & MARY L. REV. 357, 359 (1998).44 ?. Id.45 ?. Russell G. Pearce, Teaching Ethics Seriously: Legal Ethics as theMost Important Course in Law School, 29 LOY. U. CHI. L.J. 719, 735-36(1998); see also Carrie Menkel-Meadow, The “Infusion” Method at UCLA:Teaching Ethics Pervasively, 58 LAW & CONTEMP. PROBS. 129, 129-37 (1995)[hereinafter Menkel-Meadow, The “Infusion” Method at UCLA] (describingfaculty-wide project to infuse ethics teaching in at least sixdoctrinal courses or clinical situations at U.C.L.A. School ofLaw). Some law schools have put the course in the first-yearcurriculum. Most of them later moved it to the second yearbecause the faculty found students had insufficient context tomake the instruction meaningful. See, e.g., Stephen M. Bundy, EthicsEducation in the First Year: An Experiment, 58 LAW & CONTEMP. PROBS. 19 (1996)(describing Boalt Hall’s experiment with a required two-unitclass in the first-year curriculum). For a discussion of effortsto teach dispute resolution courses in the first-year law schoolcurriculum, see Ronald M. Pipkin, Teaching Dispute Resolution in the FirstYear of Law School: An Evaluation of the Program at the University of Missouri-Columbia, 50 FLA. L. REV. 609 (1998); Leonard L. Riskin, Final Report:Integrating Dispute Resolution into First-Year and Other Law School Courses:Disseminating a Proven Reform, 50 FLA. L. REV. 589, 590 (1998).46 ?. See HOW PEOPLE LEARN: BRAIN, MIND, EXPERIENCE AND SCHOOL 62(John D. Bransford et al. eds., 2000).47 ?. See infra notes 127-201 and accompanying text.

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students to anticipate the ethical realities oflaw practice.48 She notes:

Large classes, no [teaching] assistants, one finalexam, and very little feedback or accountabilityallows students to potentially do very well onexams without steady and sustained effort. [Incontrast,] law practice is hard work, both interms of pressure and substance; lawyers haveresponsibility for people’s lives, families,businesses, and money. Making a mistake orneglecting a matter can have far-reachingconsequences. While it might work in law school,being barely prepared in practice is not goodenough.49 Finally, the promotion and tenure process at

some schools may discourage professors fromexperimenting with teaching methodologies otherthan lecture and the Socratic method.50 Usingactive learning techniques can create risk forinstructors by leading to lower student ratingsand drawing the scorn or disapproval ofcolleagues, thus affecting tenure and promotiondecisions and creating the misperception thatcourses using the technique are “easy, and [by]suggesting to colleagues that the professor haslost control of the class.”51

D. Implications for Teaching Mediation Ethics to New andExperienced Mediators

Instructors teaching mediation ethics may facesome of the same barriers to learning that lawprofessors face in teaching legal ethics. Thebarriers in the mediation context likely depend on48 ?. See Lupica, supra note 13, at 83 n.51.49 ?. Id.50 ?. Groccia et al., supra note 27, at 7.51 ?. Id.; see also Friedland, How We Teach, supra note 19, at39 (“[P]rofessors may be influenced by peer pressure to use theSocratic method, as the majority of professors use it and themajority of students are accustomed to it.”).

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the context of the course, the age and interest ofthe students taking it, the prior experience ofthe students with mediation practice, the timeallowed for the discussion of ethics, the skillsof the instructor, and his or her preference forteaching method.

IV.POSSIBLE APPROACHES TO TEACHING PROFESSIONAL ETHICSWhile many scholars have written about teaching

legal ethics52 and several scholars have writtenabout mediation ethics,53 the scholarship on52 ?. See, e.g., infra notes 127-201 and accompanying text.53 ?. See, e.g., DISPUTE RESOLUTION ETHICS: A COMPREHENSIVE GUIDE(Phyllis Bernard & Bryant Garth eds., 2002) [hereinafter DISPUTERESOLUTION ETHICS] (discussing mediation ethics, the unauthorizedpractice of law, enforcement of ethics in mediation, and ethicsfor provider organizations); Robert P. Burns, Some Ethical IssuesSurrounding Mediation, 70 FORDHAM L. REV. 691, 692-97, 701-06 (2001-2002) (discussing the ethics of facilitated negotiation and oflawyers participating in mediation); Robert A. Baruch Bush, TheDilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications,1994 J. DIS. RESOL. 1 (1994) (discussing study of ethical dilemmasreported by mediators and creating nine conceptual categories foranalyzing them); John Feerick et al., Standards of Professional Conduct inAlternative Dispute Resolution, 1995 J. DIS. RESOL. 95 (1995) (paneldiscussion of ethical dilemmas and possible approaches to theirresolution); Fiona Furlan et al., Ethical Guidelines for Attorney-Mediators:Are Attorneys Bound by Ethical Codes for Lawyers When Acting as Mediators?, 14 J.AM. ACAD. MATRIMONIAL L. 267, 287-92 (1997) (discussing the extentto which rules of lawyer professional responsibility apply to theattorney-mediator); Madeleine H. Johnson, Student Author, What’s aMediator to Do? Adopting Ethical Guidelines for West Virginia Mediators, 106 W. VA.L. REV. 177, 187-92 (2003-2004) (focusing on the lack of ethicalguidance provided to West Virginia mediators); Maureen E. Laflin,Preserving the Integrity of Mediation Through the Adoption of Ethical Rules for Lawyer-Mediators, 14 NOTRE DAME J.L. ETHICS & PUB. POL’Y 479, 511-16 (2000)(advocating “targeted” rules of professional conduct that addressthe “cross-practice” ethical issues faced by lawyer-mediators);Craig McEwen, Giving Meaning to Mediator Professionalism, DISP. RESOL. MAG.,Spring 2005, at 3, 6 (suggesting that ethics rules serve as toolsfor peer group reflection on and discussion of ethics issues);Carrie Menkel-Meadow, Ethics in ADR: The Many “Cs” of Professional Responsibilityand Dispute Resolution, 28 FORDHAM URB. L.J. 979, 981-87 (2000-2001)(discussing ADR counseling, mediation confidentiality, andneutral conflicts of interest); Carrie Menkel-Meadow, Ethics andProfessionalism in Non-Adversarial Lawyering, 27 FLA. ST. U. L. REV. 153, 166

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teaching mediation ethics remains quite thin.54

Accordingly, I have surveyed and summarized thefew articles written by professors who use activelearning methods to teach legal ethics in lawschool. 55 These articles suggest some possibleapproaches to teaching mediation ethics to lawstudents or to practicing mediators.

(1999) (outlining needed changes in the legal ethics codes forlawyers to serve as third-party neutrals); Robert B. Moberly,Mediator Gag Rules: Is it Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L.REV. 669, 678 (1997) (arguing against ethics rules precluding amediator from giving legal advice, information, or evaluations);Charles Pou Jr., “Embracing Limbo”: Thinking About Rethinking Dispute ResolutionEthics, 108 PENN ST. L. REV. 199, 210-17 (2003-2004) [hereinafterPou, Embracing Limbo] (describing strategies for improving ethicalcompetence of mediators); Fran L. Tetunic, Florida Mediation Case Law:Two Decades of Maturation, 28 NOVA L. REV. 87, 89 (2003-2004)(reviewing case law on confidentiality in mediation, meaningfulattendance at mediation, enforcement of mediation agreements, andother mediation related issues); Harry M. Webne-Behrman, TheEmergence of Ethical Codes and Standards of Practice in Mediation: The Current State ofAffairs, 1998 WIS. L. REV. 1289, 1303 (1998) (proposing a WisconsinNetwork for Excellence to develop a “professional infrastructure”to improve the quality of mediation services); Diane K. Vescovoet al., Essay—Ethical Dilemmas in Mediation, 31 U. MEM. L. REV. 59, 60-97(2000-2001) (analyzing the impartiality and confidentialityissues raised in a hypothetical case).54 ?. See supra note 10 and accompanying text.55 ?. Lerner, Using our Brains, supra note 13, at 644; Burns,Teaching the Basic Ethics Class, supra note 22; Mary Daly & Bruce Green,Teaching Legal Ethics in Context, N.Y. ST. B.J., June 1998, at 6; BruceGreen, Teaching Lawyers Ethics, 51 ST. LOUIS U. L.J. 1092 (2006-2007)(providing a transcript of a discussion of a real-life ethicsproblem) [hereinafter Green, Teaching Lawyers Ethics]; Steven H. Hobbs,Hitting the Sweet Spot: Finding the Center in Teaching Professional Responsibility, 51ST. LOUIS U. L.J. 1269, 1272 (2007); Lupica, supra note 13, at 73;Ben Sheehy, Sinners, Saints, & Lawyers: Exercises for Teaching Ethics, THE LAWTEACHER, Spring 2003, at 4-5; Stephen Simon & Maury Landsman,Judicial Ethics Simulation Based Training, 58 LAW & CONTEMP. PROBS. 323, 323-24(1995) (could be adapted for legal ethics training); MariaTzannes, Legal Ethics Teaching and Practice: Are There Missing Elements?, 1 T.M.COOLEY J. PRAC. & CLINICAL L. 59, 60 (1997); Venter, supra note 22,at 290; Steven Wechsler, Attorney Trust Accounts: Teaching the Basics Using aClassroom Simulation, THE LAW TEACHER, Spring 2000, at 8-9. See alsoFrenkel, supra note 13, at 30-43 (teaching ethics with real worlddilemmas, discussion, and role-plays); Myers, supra note 37, at

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A. Possible Learning Objectives of a Professional Ethics Course

Courses, workshops, or continuing educationprograms can focus on one or more of the followinglearning objectives of professional ethicstraining.56 The scope of any course will reflectthe limits on the time and teaching resourcesavailable. In (approximately) descending order ofhigher-order thinking, an instructor could designa course to ensure that students:

Pass the Multistate Professional ResponsibilityExamination (“MPRE”) or other professionalethics exam;57

Gain mastery of the rules, which create theboundaries of, or lower limits to, ethicalconduct;58

411-12 (teaching a course covering trusts and estates,professional responsibility, interviewing, counseling,negotiating, and drafting); Luban & Millemann, supra note 37, at64-87 (discussing clinic-based ethics class).56 ?. The MacCrate Report identified the following“fundamental values of the profession”: Provision of competentrepresentation: striving to promote justice, fairness andmorality: striving to improve the profession; and professionaldevelopment. A.B.A. SECTION OF LEGAL EDUCATION AND ADMISSION TO THE BAR,LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT: AN EDUCATIONAL CONTINUUM 140-41 (Robert MacCrate, ed.,1992). See, e.g., GREGORY S. MUNRO, OUTCOMESASSESSMENT FOR LAW SCHOOLS (2000), available athttp://lawteaching.org/publications/books/outcomesassesment/munro-gregory-outsomesassessme nt2000.pdf; B. Gleaner Fines, Expectationson Teaching and Learning, 38 GONZ. L. REV. 89 (2002-2003); Patrick T.O’Day, Assessing What Matters in Law School: The Law School Survey of StudentEngagement, 81 IND. L.J. 401 (2006) (discussing the Law SchoolSurvey of Student Engagement (“LSSSE”) report); Charity Scott,How Well do we Engage our Students?, 35 J.L. MED. & ETHICS 739 (2007)(discussing the LSSSE report); see generally Roy Stuckey, Teaching withPurpose: Defining and Achieving Desired Outcomes in Clinical Law Courses, 13CLINICAL L. REV. 807, 807 (2007) [hereinafter Stuckey, Teaching withPurpose].57 ?. Venter, supra note 22, at 288 (suggesting that ifstudents treat the ethics course as a review course for the MPREand learn ethics for the sake of passing that exam, theytrivialize professional ethics). 58 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 38-39; Venter, supra note 22, at 288. The case law method of teachingethics simply conveys “the sense of the boundaries or limitswithin which one must conduct oneself if one is to be an

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Learn to avoid conduct that will put a lawyerbefore a disciplinary board;59

Understand that avoiding conduct that will puta lawyer before a disciplinary board is not thesame as engaging in conduct consistent withprofessional ethics, professionalresponsibility, or good practice;60

Gain an appreciation of the moral, social, andhistorical content involved in the rules,values, and norms of professionalism;61

Recognize moral and professional ethics issueswhen they arise, especially in complexsituations or in moments of stress;62

‘ethical’ attorney, or at least if one is to avoid beingdisciplined.” Venter, supra note 22, at 288. Hartwell suggeststhat in teaching students professional ethics “we do not alwaysdistinguish between formal ethics and moral reasoning. For me,ethics refers to rules of conduct; moral reasoning refers to thecriteria one employs in deciding what is moral conduct.”Hartwell, supra note 19, at 536.59 ?. Hartwell’s review of 285 ethical disbarments showedthat in nearly half the cases, the lawyers “had simply failed toperform or communicate with their clients. More than one-thirdhad abandoned their clients. Almost one-fourth had stolen fromtheir clients and another near one-fourth had been suspended forserious crimes . . . .” These disbarments reflect “immaturity[in] . . . moral reasoning . . . not [a] failure to know therules.” Hartwell, supra note 19, at 537.60 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 38-39. Venter seems to associate “legal ethics” with the learningof rules of ethics and “professional responsibility” withlearning “moral and ethical issues that rules do not raise.”Venter, supra note 22, at 291 n.22. 61 ?. Venter, for instance, describes learning lawyerethics in South Africa when it still adhered to apartheid. “[N]oone ever discussed with me the moral and ethical implications ofpracticing law in a country with a completely perverted system ofjustice.” Venter, supra note 22, at 290 n.16. Lon Fullersuggested that each process, including each ADR process, has itsown “morality” because of the way in which neutrals and partiesmight use it. Accordingly, ethicists and practitioners shoulddevelop theory and practices defining the morality, or ethics,relating to each process. Carrie Menkel-Meadow, From Legal Disputesto Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in aMultidisciplinary Context, 54 J. LEGAL EDUC. 7, 25 (2004).62 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 38.Professor Tzannes calls the recognition of the ethical dilemma“the threshold question.” “If a lawyer does not recognize an

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Learn to “unpack” ethical dilemmas in aconscious way, successfully describe theirfeatures,63 and select the standard of judgmentor framework of analysis to identify morallyappropriate action;64

Apply the rules, values, and norms in a “realworld” context to reach an appropriate ethicaldecision;65

Resolve to act in conformity with the moraljudgments made by the practitioner;66

Implement the appropriate ethical decision67and foster ethical behavior of lawyers;

Gain an appreciation that resolving an ethicaldilemma often requires the good judgment of theself-regulated lawyer;68

ethical dilemma or conflict, then she will likely proceed with noconsideration of the ethical issues arising because she isdeprived of the opportunity to enter into the ethical decision-making process.” Tzannes, supra note 55, at 76. Lupica describesthis process—moral sensitivity—as the first step in moraldecision-making. Lupica, supra note 13, at 72 n.6 (citing EdwardJ. Conry & Donald R. Nelson, Business Law & Moral Growth, 27 AM. BUS.L.J. 1, 7-8 (1989)). 63 ?. Tzannes, supra note 55, at 77.64 ?. Lupica, supra note 13, at 72 n.6 (citing Conry &Nelson, supra note 62, at 7-8) (this process is also known as“moral judgment”); see also Pau Brest & L. Krieger, Symposium on the21st Century Lawyer: On Teaching Professional Judgment, 69 WASH. L. REV. 527(1994).65 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 42(making the analogy that learning ethics rules without contextualapplication of them is like “knowing all the grammatical rules ofa language” but still not being able to speak or write); see alsoAlan M. Lerner, Law and Lawyering in the Work Place: Building Better Lawyers byTeaching Students to Exercise Critical Judgment as Creative Problem Solvers, 32 AKRONL. REV. 107, 109 (1999) [hereinafter Law and Lawyering]; Frank E. A.Sander & R. N. Mnookin, Teaching of Problem Solving in Law Schools is a WorthyChallenge, DISP. RESOL. MAG., Summer 2000, at 21 [hereinafter Teachingof Problem Solving].66 ?. Lupica, supra note 13, at 72 n.6 (citing Conry &Nelson, supra note 62, at 7-8). 67 ?. Tzannes, supra note 55, at 77 ; Lupica, supra note13, at 72 n.6 (citing Conry & Nelson, supra note 62, at 7-8) (alsoknown as “moral action”).68 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 38-39.

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Understand when situations also implicatepersonal responsibility or morality in thepractice of law;69

Achieve sufficient sophistication andcompetence so the lawyer can appropriatelyresolve tensions between particular rules,values, or norms in a particular situation;70

Realize that law practice norms may not adhereclosely to the rules of ethics or values ofprofessional responsibility. Without consciousself-awareness, young lawyers may take theslippery slope and engage in unethical conductby adopting “the attitudes and behaviorprevalent in a [law practice] culture;”71

Achieve sufficient sophistication andcompetence so the lawyer can evaluate orcriticize a particular rule, value, or norm andrecognize a need for appropriate reforms tothose rules, values, or norms;72

Create self-regulated practitioners who “honorthe values of excellence, integrity, respect,and accountability while still operating theirlaw practices as successful businesses”;73

Produce competent, caring, and thoughtful

69 ?. Venter, supra note 22, at 288.70 ?. Jamie Henikoff & Michael Moffitt, Remodeling the ModelStandards of Conduct for Mediators, 2 HARV. NEGOT. L. REV. 87, 95-97 (1997)(criticizing the 1994 Model Standards as looking and operatingtoo much like rules governing the ethics of legal practice andarguing that the nine principles set out absolute duties withoutmentioning the ways the principles might interact with eachother); Paula M. Young, Rejoice! Rejoice! Rejoice, Give Thanks, and Sing: ABA, ACRand AAA Adopt Revised Model Standards of Conduct for Mediators, 5 APPALACHIAN J.L. 195, 234-38 (2006) (responding to Henikoff & Moffitt’scriticisms); see also Hartwell, supra note 19, at 510-11 (describingthe last stage of moral development as involving considerationsof fundamental fairness and equity, the well-being of society asa whole, and the well-being of individuals in that society;lawyers at this stage of moral development “consider not only thelanguage of formal ethics rules but also the social utility therules were presumably designed to effect”). 71 ?. Tzannes, supra note 55, at 73.72 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 39.73 ?. Lupica, supra note 13, at 82.

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professionals; and,74 Produce professionals who want to protect their

own professional reputations, the reputationsof the profession, the courts, and the U.S.system of justice by engaging in conductmeeting the highest standards ofprofessionalism.75

Mary Thompson suggests that instructorsteaching mediation ethics should focus on four“competency areas”: (1) self-awareness ofpotential sources of bias; (2) knowledge ofprofessional standards; (3) analysis of ethicaldilemmas and development of skills to decide on acourse of action; and (4) performance in themoment when the mediator faces an ethicaldilemma.76 These competencies also roughlycorrespond to the four stages of learningdiscussed below. Students take the knowledgegained and develop the analytical and performanceskills to apply it to different situations arisingin mediation.77

74 ?. Venter, supra note 22, at 288.75 ?. “If lawyers actively demonstrate respect for thelegal system, the public perception will follow.” Lupica, supranote 13, at 84 n.53 (citing Timothy P. Terrell & James H.Wildman, Rethinking Professionalism, 41 EMORY L.J. 403, 426 (1992)).After compiling this list, it occurred to me that it paralleledmy own cognitive and moral development as outlined in the firstparagraphs of this Article. See supra notes 1-9 and accompanyingtext.76 ?. Mary Thompson, Session PC 1.02: Teaching Mediation Ethics:Activities for Teaching Ethical Competence, Association for ConflictResolution, Third Annual Conference, The World of ConflictResolution: A Mosaic of Possibilities, in Orlando, Fla. (Oct.15-18, 2003); see also Mary Thompson et al., Session E9: DeliveringQuality Mediation: What’s Ethics Got to do with It?, A.B.A. Section of Disp.Resol. Sixth Annual Conference, Resolution and Resilience in NewYork, in New York, NY (April 15-17, 2004).77 ?. See, e.g., Susan J. Schmitz, What Should We Teach in ADRCourses? Concepts and Skills for Lawyers Representing Clients in Mediation, 6 HARV.NEGOT. L. REV. 189 (2001).

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B. Stages of Learning in the Context of Professional Ethics Training

Learning theory suggests that students mustcomplete four stages of learning: (1) absorbinginformation, (2) processing information, (3)retaining and recalling information, and (4)transferring the information to a new situationand solving problems.78 First, students mustabsorb or receive the information through readingassigned materials, listening to lectures,engaging in the Socratic method, listening topodcasts, taking notes, asking questions, engagingin after-class self-directed learning,participating in study group discussions, orattending optional classes offered by theinstructor.79

Second, students must process or encode thereceived information.80 They must answer thequestion: “What does it mean?”81 They obtain deepknowledge of the topic or concept by examining itselements, understanding explanations about it,reviewing examples of it, identifying exceptionsto it, and making comparisons of it to othertopics or concepts.82

The third stage of learning requires studentsto retain and recall the learned information.83

The instructor can create opportunities forfeedback to the student that encourage self-reflection about the student’s progress towardslearning the subject matter. In this stage of the78 ?. Friedland, Presentation to Faculty of theAppalachian School of Law, in Grundy, Va. (Oct. 24, 2007)[hereinafter Friedland, Presentation to Faculty]. 79 ?. Id.; see, e.g., M.H. Sam Jacobson, A Primer on Learning Styles:Reaching Every Student, 25 SEATTLE U. L. REV. 139, 151-56 (2001)(describing “verbal,” “visual,” “aural,” “oral,” “tactile,” and“kinesthetic” information absorption preferences).80 ?. Friedland, Presentation to Faculty, supra note 78.81 ?. Id. 82 ?. Id.83 ?. Id.

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process, the instructor may give an exam toencourage students to outline the concepts orotherwise commit them to memory.84 The professorcan provide other types of feedback that will helpstudents retain and recall the information,including comments in class, cumulative or interimperformance reviews, exam comments and sampleanswers, paper comments, TWEN discussions, andstudent conferences. A student’s peers can alsoprovide feedback about how well the student isretaining and recalling information through buzzgroup work, group exam work, study group work,informal student exchanges, and in-class comments,guffaws, and discussions. Finally, a student canassess his or her own retention and recall byusing flash cards and other means of self-assessment or testing.85

The last stage of the learning process requiresstudents to transfer to a new situation theinformation and knowledge learned.86 An instructorcan test whether a student has reached this stageof learning, otherwise known as problem-solving,by evaluating a student’s application of theinformation, concept, theory, or doctrine to newfacts set out in an exam, through performance-based testing or evaluation, with a capstonesimulation, by late-course writing assignments,and other assignments requiring application of

84 ?. See ASSOCIATION FOR CONFLICT RESOLUTION, ACR MEDIATORCERTIFICATION TASK FORCE, REPORT AND RECOMMENDATION TO THE ACR BOARD OFDIRECTORS (March 31, 2004), available athttp://www.acrnet.org/about/taskforces/certification.htm[hereinafter ACR CERTIFICATION TASK FORCE] (proposing test of elevenareas of knowledge, including communication, conflict theory,content management and resources, cultural diversity, ethics,history of mediation, models, strategies and styles, negotiation,process structure, role of third party, and systems and groupdynamics).85 ?. Friedland Presentation to Faculty, supra note 78.86 ?. Id.

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learned knowledge to new facts, circumstances, orproblems.87

In terms of each class session, instructorswill plan to (1) give students an experience, (2)review the experience, (3) have students makeconclusions from the experience, and (4) help themplan the next steps in light of that experience.88

Thus, the instructor should “close the loop” foreach planned experience by explaining to thestudents what they have done and reinforcing thelearning the instructor has observed.89

C. Designing an Active (or Interactive) Learning Environment

Professor Michael Josephson has applieddevelopmental learning theory to the law classroomsuggesting that students engage in the highestorder of cognition in law school when engaged insynthesis, then judgment, then problem-solving,then issue spotting, then understanding, and thenknowledge acquisition, in descending order ofcognitive complexity.90 Unless the instructor87 ?. Jonathan Haidt, The Emotional Dog and its Rational Tail: A SocialIntuitionist Approach to Moral Judgment, 108 PSYCHOLOGICAL REV. 814, 817(2001) (arguing that moral judgment is generally the result ofquick, automatic evaluation).88 ?. Friedland Presentation to Faculty, supra note 78.Jacobson, however, suggests that

attempts to directly teach thinking and reasoning in aclassroom setting generally show little transfer to activitiesoutside the classroom, and because moral judgment involves[more highly emotionally charged] topics than are usuallydealt with in courses that attempt to teach thinking andreasoning, the degree of transfer is likely to be evensmaller.

See also Jacobson, supra note 79, at 172.89 ?. Sophia Sparrow, Using Active Learning Techniques in the LegalWriting Classroom, Legal Writing Institute Biennial Conference inKnoxvill, Tenn. (June 1, 2002), at 3 (on file with author). 90 ?. Michael Josephson, Learning & Evaluation in Law School,Ass’n of Am. Law Schools Annual Meeting, in San Francisco, Ca.(1984), at 58, cited in Friedland, How We Teach, supra note 19, at12.

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defines very narrow knowledge acquisition goalsfor a course, the instructor should encouragehigher-order thinking. An active learningenvironment can enhance higher-order thinking.

An active (or interactive) learning environmentis a classroom in which: (1) students “seek[] andcreate[] knowledge for themselves and others”; (2)students are engaged in “listening, thinking,writing, discussing, questioning, responding,solving problems, computing, forming hypotheses,doing experiments, working on projects, [and]sharing information and feelings”, versus passivelearning whereby they listen and take notes; (3)the instructor does not perceive the students as“empty vessels waiting to be filled with knowledgeby the instructor”; (4) students construct theknowledge; (5) the instructor gives and students“accept . . . responsibility for their own and, tosome degree, other students’ learning”; (6) thelearning environment encourages communicationbetween the instructor and students, and betweenone student and another student; (7) theenvironment encourages all participants toperceive students as potential teachers; (8)students engage in “higher-order thinking(analysis, synthesis and evaluation) as well asmemorization, recall, and recognition”; (9)students perceive learning as “developing newskills as well as learning facts and information”;(10) “faculty provide immediate and detailedfeedback”; (11) the learning environment motivatesstudents “to learn and apply what they learn, notjust to perform on [exams]”; (12) the instructorand students show excitement for learning; and(13) the learning environment puts the focus ofattention on each student, rather than on theinstructor.91 In short, the teacher primarily91 ?. Groccia et al., supra note 27, at 1-2 (suggestingthe reasons students resist active learning). See generally MEYERS &JONES, supra note 12 (with chapters on informal small groups,

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organizes and creates situations that present tostudents useful problems and situations that theywill discuss, consider, and for which they willevolve strategies and solutions.92

Hyland and Dale have devised a “cone oflearning” that correlates retention of informationwith the level of the student’s involvement.93

Thus, a student only retains ten percent of whathe or she reads, twenty percent of the words he orshe hears,94 and thirty percent of the pictures heor she views.95 However, at the other extreme, astudent retains seventy percent of what he or shesays in a discussion or in giving a talk.96 He orshe retains ninety percent of what the student andthe instructor says and does in a dramatic

cooperative student projects, simulations, case studies, guestspeakers, and the effective use of technology); WILLIAM M. TIMPSONET AL., supra note 12 (with chapters on lecture; questions, answersand discussions; energy, creativity, and spontaneity; and threechapters on using theater techniques and improvisation in class);Robin A. Boyle, Employing Active-Learning Techniques and Metacognition in LawSchool: Shifting Energy from Professor to Student, 81 U. DET. MERCY L. REV. 1(2003); Gerald F. Hess, Seven Principles for Good Practice in Legal Education:Principle 3: Good Practice Encourages Active Learning, 49 J. LEGAL EDUC. 401,402 (1999).92 ?. Groccia et al., supra note 27, at 4 (citing Piaget’stheory of cognitive development).93 ?. Id. at 5.94 ?. The research on lecture as a teaching methodologyshows: (1) student attention and concentration during lecturesdeclines after fifteen to twenty minutes; (2) students cannotlisten to an entire lecture effectively; (3) lectures no moreeffectively transmit information than other teachingmethodologies; (4) lecture less effectively promotes thought orchange in attitudes than other teaching methods; (5) a lecture’seffectiveness depends on “the educational level of the audience”;(6) students do not pay attention to the lecture forty percent ofthe time; (7) students retain seventy percent of the informationin the first ten minutes of the lecture, but in the last tenminutes of the lecture they retain only twenty percent of theinformation; and (8) “[f]our months after taking a traditionallecture oriented introduction to psychology course, student knewonly 8% more than a control group who had never taken thecourse.” Groccia et al., supra note 27, at 2-3, 5.95 ?. Id. at 5.96 ?. Id.

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presentation, in a simulation, or in doing thereal thing.97

D. Course Design

An instructor designing a course onprofessional ethics must consider its format,organization, scope, personnel requirements,materials, time available, scheduling options, andteaching techniques or methodologies.98 A lawschool’s faculty must agree on the course’s placein the sequencing of all law school courses.99

Courses using more experiential learningtechniques typically require smaller class sizeand, accordingly, additional faculty or otherteaching resources.100 These types of classes tendto be more expensive for the institution to offerthan courses taught in large groups by lecture,the Socratic method, or case law methods.

E. Teaching Methodologies

1. Commitment to Teaching Processional Ethics Effectively Once an instructor has chosen the learning

objectives for the ethics course and designed itscontent and the learning environment he or she97 ?. Id.98 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 39-40.99 ?. Burns suggests that students take the simulation-based ethics/trial advocacy/evidence courses in the firstsemester of their second year.

[It] is an ideal time for students to focus on the world oftrial court and to experience pedagogical methods quitedifferent from the analysis of appellate cases in a Socraticclassroom. It does much . . . to give students a sense ofprogression in their legal educations and to dissipate theennui that can come from a feeling of running in place.

Burns, Teaching the Basic Ethics Class, supra note 22, at 40 n.14.100 ?. See also Venter, supra note 22, at 290-95.

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wants to create, the instructor must then chooseteaching methodologies that will help studentsreach the learning objectives set for the course.

a. Commitment to TeachingLegal Ethics Effectively

In the last few years, the legal academy hasgiven teaching theory and methodology greaterattention.101 Even so, two scholars cynically notethat “many law schools and the ABA tolerateindifferent teaching of [legal ethics],maintaining the course requirements largely as ameans of reassuring the public that the profession101 ?. WILLIAM M. SULLIVAN, ANNE COLBY, JUDITH WELCH WEGNER, LLOYDBOND & LEE S. SHULMAN, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OFLAW (Carnegie Foundation for the Advancement of Teaching 2007);see also STEPHEN BROOKFIELD, THE SKILLFUL TEACHER, at 12 (1990) (providinga good discussion of active learning techniques with chapters onlecturing creatively, facilitating discussion, using simulationsand role-playing, giving helpful evaluations, overcomingresistance to learning, and building trust with students); STEVENI. FRIEDLAND & GERALD HESS, TEACHING THE LAW SCHOOL CURRICULUM (2004)(providing tips on approaches, materials, class exercises, “briefgems,” and evaluation of students).

See generally DAVID ROYSE, TEACHING TIPS FOR COLLEGE ANDUNIVERSITY INSTRUCTORS: A PRACTICAL GUIDE (2001) (offering chapters onclassroom strategies; small group, peer learning and role-playing; teaching the large lecture class; teaching students howto learn; experiential learning; use of instructional technology;examinations; grading; managing problem situations; cheating;humor in the classroom; improving teaching performance; valuesand ethics); ROY STUCKEY AND OTHERS, BEST PRACTICES FOR LEGAL EDUCATION: AVISION AND A ROAD MAP (Clinical Legal Education Association 2007)[hereinafter STUCKEY, BEST PRACTICES]; Steven Hartwell & Sherry L.Hartwell, Teaching Law: Some Things Socrates Did Not Try, 40 J. LEGAL EDUC.509 (1988); Gerald F. Hess, Heads and Hearts: The Teaching and LearningEnvironment in Law School, 52 J. LEGAL EDUC. 75, 75-79 (2002)(summarizing the research showing that the law school environmentis stressful, intensely competitive, alienating, anxietyproducing, isolating, intimidating, de-motivating anddistressing; it emphasizes linear, logical, doctrinal analysisand de-emphasizes emotion, imagination, morality, respect,support, collaboration, inclusion, engagement, delight, andfeedback); Mary Kay Lundwall & Arturo L. Torres, Moving BeyondLangdell II: An Annotated Bibliography of Current Methods for Law Teaching, 2000GONZ. L. REV. 1 (spec. ed. 2000).

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cares about ethics.”102 The ABA’s accreditationstandards for law schools provide:

(a) A law school shall require that each studentreceive substantial instruction in:

* * *(5) the history, goals, structure, values,rules and responsibilities of the legal professionand its members.103 The commentary to Standard 302 encourages each

law school to involve members of the bench and barin meeting this requirement.104 It also advisesthat courses should include the law on lawyeringand the Model Rules of Professional Conduct of theABA.105 Beyond these brief instructions, the ABAsays nothing about teaching methodologies forlegal ethics classes.106

b. Commitment to Teaching Mediation Ethics Effectively

The mediation field has even less concern formediation ethics, including how, or even whether,we teach the subject. Only seventeen states havea mandatory ethics code for mediators.107 Very fewstates impose any requirements that instructors102 ?. Roger C. Cramton & Susan P. Koniak, Rule, Story andCommitment in the Teaching of Legal Ethics, 38 WM. & MARY L. REV. 145, 154(1996).103 ?. ABA SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR,STANDARDS AND RULES OF PROCEDURE FOR APPROVAL OF LAW SCHOOLS, (2009-2010),at Standard 302(a)(5) [hereinafter ABA STANDARDS]. Schools mustalso create “substantial opportunities for . . . studentparticipation in pro bono activities.” Id. at Standard 302(b)(2).104 ?. Id. at Interpretation 302-6105 ?. Id. at Interpretations 302-6 & 302-9. For adiscussion of integrating practicing lawyers and judges into theprogram of instruction, see STUCKEY, BEST PRACTICES, supra note 102,at 157-59.106 ?. The interpretation of the standard governingpractice skills, however, encourages law schools “to be creativein developing programs of instruction in professionalskills . . . using the strengths and resources available to theschool.” ABA STANDARDS, supra note 103, at Interpretation 302-2.

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include a discussion of mediation ethics incourses designed to train new mediators.108

Similarly, very few states require mediators toobtain additional ethics training as a conditionto remaining certified, registered, or rostered.109

Unlike lawyers, who typically toil in firms,before opposing counsel, and in public courtrooms,mediators typically toil in private conferencerooms, bound by ethical constraints of107 ?. See Young, Take it or Leave it, supra note 7, at 735-36,n.48.108 ?. ABA SECTION OF DISPUTE RESOLUTION, TASK FORCE ONCREDENTIALING, REPORT ON MEDIATOR CREDENTIALING AND QUALITY ASSURANCE§ 1(C), (Discussion Draft Oct. 2002), available athttp://www.abanet.org/dispute/taksforce_report_2003.pdf(recommending that the task force develop “model standards formediator preparation programs [and] [o]utline one or more modelsystems of mediator credentialing . . . focusing initially on theaccreditation of mediator preparation programs”).109 ?. For example, by Administrative Order, the FloridaSupreme Court has imposed continuing mediator education (“CME”)requirements on all certified mediators. Fla. Sup. Ct. Adm.Order No. AOSC08-23 (June 30, 2008), at 10-13, available athttp://www.flcourts.org/ gen_public/adr/index.shtml. It requirescertified mediators to complete sixteen hours of CME, includingfour hours of ethics training, each two-year certificationrenewal cycle.

The Georgia Commission on Dispute Resolution(“GODR”) sets standards for continuing mediation education thatappear in Appendix A to the ADR Rules. GA. SUP. CT., UNIFORM RULESFOR DISPUTE RESOLUTION PROGRAMS, APP. A TO GEORGIA ADR RULES 5.3 (Jan.27, 1993), available at http://www.godr.org/files/APPENDIX%20A%201-19-2010.pdf. This same appendix declares that “neutrals must becompetent.” Id. at 5.4. The rules require three hours ofadditional CME during every annual registration renewal cycle.GA. SUP. CT., UNIFORM RULES FOR DISPUTE RESOLUTION PROGRAMS, APP. B TOGEORGIA ADR RULES, at 17 (Nov. 12, 2009), available athttp://www.godr.org/files/APPENDIX%20B%201-19-2010.pdf. The ruledoes not require, however, additional ethics training. Id. at 16-17. The GODR can remove a neutral from the registry if he or shefails to meet the requirement. Id. at 17.

The Virginia Supreme Court requires mediators toobtain recertification every two years. Mediators seekingrecertification must complete an additional eight hours oftraining, including two hours of mediation ethics instruction.Training Guidelines for the Training and Certification of Court-Referred Mediators § F (effective Jan. 1, 2007), available athttp://www.courts.

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confidentiality. When lawyers make an ethicalmisstep, someone might be there to help the lawyerget back on track. In contrast, mediatorstypically make ethical slips with only thedisputing parties present. While parties may feela procedural justice “quake,” they will not knowwhether the mediator has violated the provisionsof any mandatory or aspirational code, at leastnot during the mediation.110

Moreover, the rules governing confidentialityin mediation make it difficult for mediators totalk with others about ethical dilemmas that arisein a particular mediation.111 Workshops sponsoredby groups like the VMN112 permit a collaborativeexchange of ideas about mediation ethics in acontext that respects its core values, includingthe confidentiality of mediation communications.

The need for conversations about mediationethics could not be clearer according to LeilaTaaffe, the former Director of the Georgia Officeof Dispute Resolution.113 She sees it this way:

In the court [connected mediation] context we’revery concerned about protecting the public. We say

state.va.us/courtadmin/acc/djs/programs/drs/mediation/training/form.pdf.110 ?. Christopher Honeyman, Understanding Mediators, IN THENEGOTIATOR’S FIELDBOOK 581, 589 (Andrea K. Schneider & ChristopherHoneyman eds., 2006) (“The widespread use of mediation, alongwith its frequent success, shows that the effects of bias arelimited, that the talents available are considerable, and thatparties can learn to live with imperfection.”).111 ?. For this reason, I ask parties to permit me todiscuss “this mediation as a teaching tool, but only if I keepthe name of the parties confidential and talk about the facts ofthe dispute in a general manner so students will not be able toidentify the parties from the disclosure of those facts.” PaulaM. Young, Agreement to Mediate, at 4 (on file with author). 112 ?. Virginia Mediation Network homepage,http://www.vamediation.org/ (last visited Aug 23, 2010).113 ?. Diane Kenty, Sharon Press & Leila Taaffe, Session3.19: Responding to the Unhappy Consumer, ACR Third Annual Conference,The World of Conflict Resolution: A Mosaic of Possibilities inOrlando, Fla. at 7-8 (Oct. 15-18, 2003) (transcript on file withauthor).

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to the courts, “You should send certain cases tous . . . .” And there’s a quid pro quo . . . . Ifwe’re saying to the courts . . . “Send [us] yourpoor, your tired, your depressed, what[ever] . . . to mediation,” and we don’t guarantee[the courts] some kind of minimal quality in termsof performance [of the mediator] . . . [the courtsare] putting themselves into a very precariousposition. Because [we are] . . . taking people whohave availed themselves of the courtroom. Whohave followed the process that we acknowledge inthis country for settling disputes and [the courtsare] saying, “Well, try this [mediation], this isgoing to enhance the civil justice system, or thisis going to give you control over resolving thedispute.” But unless we can guarantee them somequality and some consistency in that practice,[the courts are] putting themselves on the line.And most of these people are elected officials,and they care what their community thinks. Andthey should care.114Given the important role mediators play in our

current system of justice, we should care whethermediators understand their ethical andprofessional obligations to the parties, thecourts, and the field. We should care that theunethical conduct of a mediator undermines publicconfidence in the process. As instructors, weshould care that we teach mediation ethics in away that makes the topic interesting,understandable, applicable to practice, and—godwilling—fun.

Most mediators learn the theory and skills ofmediation through highly interactive experientialteaching methods, including discussion, role-plays, video clips, and performance feedback.115

Accordingly, instructors will face little114 ?. Id.115 ?. Recently, I updated a bibliography of law reviewarticles and books discussing active learning techniques. I wassurprised to find no articles discussing the use of activelearning techniques in the ADR classroom.

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resistance to using these types of methodologieswhen teaching mediation ethics. In fact, theseadult learners may expect a more interactivelearning environment.116 Even so, my experiencesuggests that, at least in basic mediationtraining, instructors rely heavily on lecture todiscuss ethics with trainees. They do so becauseof the time constraints existing in most courses.

I have experienced basic mediator trainingthree times in my career. The first time, Ireceived my “baby” mediation training through theUniversity of Missouri School of Law in 1999. Thetraining materials for the sixteen-hour classindicate that we received two hours of ethicstraining.117 The materials included applicablecourt orders, rules, statutes, and an aspirationalcode of ethics. I do not recall discussing any ofthem. I certainly do not recall discussing ethicsfor two hours. Moreover, like law students118 orpersons new to the mediation field, even if we haddiscussed the aspirational code of ethics includedin the materials, I had no experiential contextfor understanding the discussion. At that pointin my mediation career, I had served as a mediatorin one role-play for less than two hours. Basedon the reputation and knowledge of the instructorsof the course,119 I am certain they discussedethical considerations throughout it, but I do notremember any of that discussion.

Three years later, I served as a role-playcoach in the same basic mediation training offeredby University of Missouri School of Law, but the116 ?. See Morton et al., supra note 14, at 475-77, 495-96.117 ?. A Training Workshop on Mediating Civil Cases, U. ofMissouri-Columbia, Columbia, Mo. May 13-14, 1999 (on file withauthor).118 ?. See supra note 22 and accompanying text.119 ?. James R. Coben, Professor at Hamline UniversitySchool of Law and former Director of its Dispute ResolutionInstitute (2008-2009) and James Levin, Associate Director of theCenter for the Study of Dispute Resolution, at University ofMissouri School of Law.

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course had expanded to twenty hours. I rememberhow they taught the ethics portion of the course,because at the last minute, one of the instructorsasked if I wanted to teach it. My face probablyregistered something between surprise, shock, anddistress. Accordingly, a member of the lawschool’s administrative staff taught it in alecture format for about an hour.

In the summer of 2008, I took a forty-hourfamily mediation training with Zena Zumeta, amaster mediator. She introduced ethical issuesearly in the course, first by disabusing theIllinois and Wisconsin family lawyers in the roomthat they could give any kind of legal advice as amediator. She continued to infuse ethicalconsiderations throughout the lectures anddiscussions. On the last afternoon of class, wespent at least an hour in a problem-based analysisof the ethics issues a family mediator wouldlikely face. In that process, we carefullyexamined applicable aspirational codes of ethics.120

The major dispute resolution conferenceproviders seem to encourage the use of a panel ofinstructors to teach the offered 1.5 hourworkshops. 121 As a panel member on three of these120 ?. The courts and bar associations of Missouri,Illinois, and Wisconsin do not require any additional training inmediation ethics. I recently submitted my annual CLE reports tothe Missouri Bar for approval, the administrator denied my effortto claim mediation ethics training in satisfaction of therequired legal ethics training. To claim the training, I had toshow a nexus to legal ethics. However, the two hours I earned inmy first “baby” mediation training did count as legal ethicshours according to the CLE reporting form I received from thetrainers. The same person at the Missouri Bar manages theMissouri CLE reports and the state-wide rostering of Rule 17mediators. E-mail from Christopher C. Janku, Dir. of Programs,Missouri Bar, to author (Sept. 30, 2008, 08:51 CST) (on file withauthor).121 ?. For example, at one national conference, severalmediators engaged in discussion of mediation ethics with otherpanel members, and sometimes with the audience. See, e.g., Paula M.Young et al., Session B1: Ethical Codes and Frameworks for Mediation: DoesForm Follow Function?, A.B.A. Section of Dispute Resolution, Ninth

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workshop programs, I noticed that panel membersdelivered short lectures on their assigned topics,usually assisted by PowerPoint presentations.122

Because of time constraints, panel members rarelydiscussed issues among themselves or with theaudience. While the panel members attempted toreserve some time for audience questions, the timeallotted rarely exceeded ten or fifteen minutesand the individual presentations often consumedthat time.

2. Teaching Methods Relying Less on Active Learning Instructors teaching professional ethics often

rely on teaching methodologies that fail to createan active learning environment. Lecture, Socraticmethod, case-based method, and some forms ofdiscussion-based learning could fall in thiscategory. Other scholars have discussed thedrawbacks of lecture,123 the Socratic method,124 and

Annual Conference, ADR in Bloom, in Washington, D.C. (April 25-26, 2007); Kim J. Askew et al., Session C1: Gold Standard CommercialMediation: Joining Ethical Practice with Practical Results, Am. Bar Ass’n Sectionof Dispute Resolution, Ninth Annual Conference, ADR in Bloom, inWashington, D.C. (April 25-26, 2007); Cheryl L. Jamison, JonathanS. Rosenthal & Louise P. Senft, Session C11: Promoting Mediator Qualityin Maryland: A Statewide System of Mediator Excellence, A.B.A. Section ofDispute Resolution, Ninth Annual Conference, ADR in Bloom, inWashington, D.C. (April 25-26, 2007); Jack Cooley, Leila Taaffe,Wayne Thorpe, Larry Watson & Susan Yates, Session D8: Ethical Tensionsin Caucus: Exploring the Parameters under the Model Standards of Conduct, A.B.A.Section of Dispute Resolution, Ninth Annual Conference, ADR inBloom, in Washington, D.C. (April 25-26, 2007); Michael Young &Wayne Thorpe, Session Skills 2: Models and Mayhem: Practical Solutions toPrickly Problems, A.B.A. Section of Dispute Resolution, Ninth AnnualConference, ADR in Bloom, in Washington, D.C. (April 25-26,2007), available athttp://www.abanet.org/dispute/documents/2007ConferenceBrochure2007FINAL.pdf (last visited Aug. 29, 2010).122 ?. PowerPoint slides, especially those using color,charts, diagrams, illustrations, or cartoons will aid “visual”learners to absorb information. See Jacobson, supra note 79.

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the case-law method,125 so I do not spend time onthose techniques in this Article. Instead, Ifocus on methodologies designed to create activelearning environments.

123 ?. Friedland describes lecture as: “[A] teaching formthat focuses on the delivery of information from the teacher tostudents with few, if any, questions put to the students by theteacher.” Friedland, How We Teach, supra note 19, at 29 n.79; seealso Hartwell, supra note 19, at 532-33 (identifying data and twoexamples showing that “stand-up” “teacher-centered” teaching was“often ill-suited to eliciting students’ own moral growth”);Richmond, supra note 23, at 945 (arguing that the effectiveness ofthe lecture method depends on the effectiveness and skill of theindividual professor); Tzannes, supra note 55, at 61-62 (notingthat lecture requires students to put themselves into “a quitereceptive state [] of listening and of remembering . . .[thereby] placing demands on them wholly unlike thedemands . . . on practicing lawyers”; criticizing the use oflecture because it “does not require any involvement from thestudent nor provides any hands on experience [and is] not verystimulating or interesting”; conceding, however, that lecture caneffectively deliver the black letter law or specific rules ofethics and so has its place in the classroom); Venter, supra note22, at 287 n.1 (using lecture to convey professional values bylearning about the lives and examples of famous lawyers includingSt. Thomas More). See generally DONALD A. BLIGH, supra note 32;STUCKEY, BEST PRACTICES, supra note 101, at 173 (encouraging the useof short intervals of lecture, because student retention ofinformation drops quickly as the lecture lengthens).124 ?. Friedland, How We Teach, supra note 19, at 28 n.77(defining the Socratic method as “a question and answer method inwhich the professor asks a series of questions of the students,uncovering both preconceptions and cogent legal analysis”); seeDONALD H. ZEIGLER, HOW I TEACH (2008), at 16-21 (describing a “soft”Socratic method that helps students develop sophisticated legalreasoning, independent thinking, verbal skills, and the abilityto think on their feet); Grayford Gray, Remarks at the A.A.L.S.Conference on New Ideas for Experienced Law Teachers (June 1995),cited in Friedland, Law School Evaluation, supra note 41, at 201(suggesting that at the core of most Socratic dialogues are thefollowing questions: “(1) Why are the rules/principles of law theway they are? (2) What are the rules/principles of law? (3) Howdo you solve problems using the rules/principles of law? (4) What

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3. Teaching Methods Relying on Active Learning

a. Discussion-Based MethodProfessor Lupica, after abandoning the Socratic

method of teaching professional responsibility,designed a sixteen-student seminar course in whichpracticing Bar members, judges, and the lawstudents engaged in weekly discussions about the

if the facts were changed in these problems?”). For criticisms of the method, see June Cicero,

Piercing the Socratic Veil: Adding an Active Learning Alternative in Legal Education, 15WM. MITCHELL L. REV. 1011, 1016-19 & n.34 (1989) (noting: “It isvirtually impossible to have a Socratic dialog with 200students”); J.T. Dillon, The Paper Chase and the Socratic Method of TeachingLaw, 30 J. LEGAL EDUC. 529, 529-30 (1980) (describing the scenes inThe Paper Chase between Professor Kingsfield and his students as a“contest, not collaboration; more entrapment than inquiry”); JackHimmelstein, Reassessing Law Schooling: Towards a Humanistic Study of Law, inPROJECT FOR STUDY AND APPLICATION OF HUMANISTIC EDUCATION IN THE LAW:HUMANISTIC EDUCATION IN LAW, MONOGRAPH I, at 21-22 (1980) (describingthe Socratic method as “infantilizing, demeaning, dehumanizing,sadistic, a tactic for promoting hostility and competition amongstudents, self-serving, and destructive of positive ideologicalvalues”); Ruta K. Stropus, Mend It, Bend It, Extend It: The Fate of TraditionalLaw School Methodology in the 21st Century, 27 LOY. U. CHI. L.J. 449, passim(1996) (describing the criticisms of the Socratic method,explaining the need for the method, and suggesting ways torespond to the criticisms of the method); David D. Garner, Note,Socratic Misogyny? – Analyzing Feminist Criticisms of Socratic Teaching in LegalEducation, 2000 B.Y.U. L. REV. 1597, 1634-48 (2000) (arguing thatdespite the concern of feminist scholars, the Socratic method, ifmodified, deserves a place in the law school pedagogy); Tzannes,supra note 55, at 62-63 (suggesting that the Socratic method canhelp students explore “moral, ethical, and psychological issues”relating to legal ethics and professionalism, can expose finerpoints of the problem or case, help students formulate anappropriate response to the ethical problem under considerations,but it deals with hypothetical problems; expressing concern thata student may fear disclosing—either before other students or tothe instructor who is grading him or her—the actual, perhapsunethical, response he or she might have to the ethical dilemmaor problem; revealing she had abandoned teaching her legal ethicscourse with the Socratic method and confessing: “I found thestudent’s lack of enthusiasm and engagement in the class and withthe material increasingly disturbing. They rarely becameanimated about the ethical dilemmas facing the parties in thecases or agonized over the conflicting choices confronting the

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subject assigned for the class.126 She noted thatthe course required good contacts in the localBar, good scheduling skills, and good classmanagement skills, especially those required tokeep the discussion focused on the assignedtopic.127 Research shows that students indiscussion-based courses increase retention ofinformation, engage in problem solving, engage inhigher-order thinking, experience changes inattitude, and have greater motivation for furtherlearning over those students learning in lecture-based courses.128

Professor Lupica wanted to ensure that thediscussion of the rules, values, and normsoccurred within a real world context, based onlawyers in my hypotheticals”). Professor Friedland cautions usabout the limits of the method for feedback and evaluationpurposes:

The so-called Socratic method of multiple questions andresponses, without acknowledgment of “correct answers,” issupposed to lead students to discover for themselves theappropriate framework of analysis for a particular problem andfor the body of material as a whole. While this may offer atleast some feedback to students, it is generally so diffuseand non-responsive as to be of marginal use for specificagendas of improvement, certainly insufficient to highlightprecise problems [in learning].

Friedland, Law School Evaluation, supra note 41, at 187.For a discussion on improving the use of the

technique, see Peggy C. Davis & Elizabeth E. Steinglass, A Dialogueabout Socratic Teaching, 23 N.Y.U. REV. L. & SOC. CHANGE 249 (1997).125 ?. Richmond, supra note 23, at 946 (describing the caselaw method as requiring students to “inductively learn the law bydistilling the rule of each case and synthesizing the progressionof rules into a body of law”); Tzannes, supra note 55, at 62(criticizing the use of the case method to teach legal ethics forthe reason that the cases tend to involve serious breaches ofethical rules rather than the relatively minor dilemmaspractitioners face in the “hurly-burly of practice”); Venter,supra note 22, at 287-88 (“For most ethics classes, students areexpected to buy copies of the . . . Rules . . . . These studentsspend their time reading opinions by appellate courts and barassociation ethics committees . . . An increasing number ofcourse books . . . by law teachers . . . add academic opinions tothose of judges and bar association lawyers”). 126 ?. Lupica, supra note 13, at 73,76.127 ?. Id. at 88.128 ?. Groccia et al., supra note 27, at 3.

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hypothetical (yet realistic) contexts.129 Sheconfirmed with the invited guests that thehypothetical problems accurately reflected thetype of dilemmas a lawyer could face.130 She alsosought to test student biases or presumptionsabout ethical conduct.131 For instance, when sheassigned the topic of lawyer advertising, sheinvited as a guest speaker a local attorney whoadvertised aggressively on television with amessage highlighting the firm’s hard-hitting styleof practice.132 Students brought to class negativeimpressions of the firm and its televisionadvertising.133 At the end of class, studentsbetter understood that the law firm sought torepresent clients with little power, resources, orinformation.134 The advertising, in its own way,served social justice and professionalism goals.135

To broaden the scope of the discussion and toencourage students to engage in a higher level ofcritical reflection, she used Kohlberg’s “stagetheory of moral development.”136 She wanted toavoid preaching and instead wanted to allowstudents to “discover for themselves that theprofession is not designed to resolve [the]ambiguities [attendant to the practice of law]—butthat it exists because of them.”137 She did notidentify to students the pedagogical framework orits source, but she asked the same questions inevery class to guide students through the moraldevelopment stages.138

129 ?. Lupica, supra note 13, at 77.130 ?. Id. at 79 n.33.131 ?. Id. at 79, passim.132 ?. Id. at 84.133 ?. Id.134 ?. Id. at 85.135 ?. Lupica, supra note 13, passim.136 ?. Id. at 75 (citing LAWRENCE KOHLBERG ET AL., MORAL STAGES:A CURRENT FORMULATION AND A RESPONSE TO CRITICS (John A. Meacham ed.,1983)).137 ?. Id. at 76.138 ?. Id. at 86 n.69.

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Professor Tzannes describes the use of videosor film clips portraying lawyers in ethicaldilemmas as a method for stimulating studentdiscussion.139 These clips can engage studentsemotionally and intellectually in a way that leadsto vigorous debate.140

b. DemonstrationsAs noted below, Professor Burns used

demonstrations by faculty members to illustrate aconcept when the topic did not lend itself to asimulation exercise.141 Instructors often teachmediation ethics by engaging in a role-playdemonstration or using a videotaped demonstrationof the scenario giving rise to an ethical dilemmaor concern.142

139 ?. Tzannes, supra note 55, at 63 (citing Ian Johnston &Mary P. Treuthart, Doing the Right Thing: An Overview of Teaching ProfessionalResponsibility, 41 J. LEGAL EDUC. 75 (1991)); see also Menkel-Meadow,The”Infusion” Method at UCLA, supra note 45, at 132 (describing the useof videotapes of clinical exercises in which students handledunexpected ethical dilemmas); Edmund B. Spaeth, Jr. et al.,Teaching Legal Ethics: Exploring the Continuum, 58 LAW & CONTEMP. PROBS. 159,159-60 (1995) (describing the videos produced by The Center forProfessionalism at the University of Pennsylvania Law School offactually complex stories that also raise issues ofprofessionalism). Lerner, Using our Brains, supra note 13, at 702(same).

My search of the web found several videos relatingto legal ethics on www.YouTube.com. See Bibliography, The Lawyer inPopular Culture: A Bibliography,http://tarlton.law.utexas.edu/lpop/lpopbib2.html (lasted visitedAug. 24, 2010); Dwight Golann, Using Video to Teach Negotiation andMediation, DISP. RESOL. MAG., Winter 2007, at 8 [hereinafter UsingVideo].140 ?. Tzannes, supra note 55, at 63.141 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 45.142 ?. For a discussion of the use of technology in theclassroom, see STUCKEY, BEST PRACTICES, supra note 101, at 128; see alsoPearl Goldman, Legal Education and Technology II: An Annotated Bibliography,100 LAW. LIBR. J. 415 (2008).

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c. Problem-Based MethodRichmond describes the problem-based method of

teaching as, for example, giving “students anextended set of facts and require[ing] them toresolve the issues presented.”143 It can givestudents insight to legal problems without live-client experiences. Students “(a) recognizeissues, (b) find both assigned and unassignedmaterials on point, (3) isolate rules orprinciples, and (d) formulate arguments forapplication of those rules and principles to theparticular problem.”144 The method has its limits,too. Research suggests that students “only rarely. . . stud[ied] problem cases with care.”145

Professor Lerner uses an understanding ofcognitive science and problem-based learning tohelp students respond to ethical dilemmas in moreanalytical and less emotion-driven ways.146 Heargues that lawyers engage in complex problemsolving, whether legal or ethical, using a diverseset of tools.147 However, most law schools teachstudents to solve a narrow range of problems usinga narrow range of practice tools.148 He recommendsan “experiential, highly contextualized,143 ?. Richmond, supra note 23, at 950. See generally THECHALLENGE OF PROBLEM-BASED LEARNING (Davis Boud & Graham I. Felettieds., 2d ed. 1997); THE POWER OF PROBLEM-BASED LEARNING: A PRACTICAL“HOW TO” FOR TEACHING UNDERGRADUATE COURSES IN ANY DISCIPLINE (Barabara J.Duch et al. eds., 2001); see also Mark Broida, Creative Problem Solving,THE LAW TEACHER, Spring 2001, at 9; Suzanne Kurtz et al., Problem-Based Learning: An Alternative Approach to Legal Education, 13 DALHOUSIE L. J.797, 801-03 (1990); Myron Moskovitz, Beyond the Case Method: It’s Time toTeach with Problems, 42 J. LEGAL EDUC. 241, 244 (1992); StevenShapiro, Teaching First-Year Civil Procedure and other Introductory Courses by theProblem Method, 34 CREIGHTON L. REV. 245 (2000).144 ?. Richmond, supra note 23, at 950 (citing DAN B. DOBBS,TEACHING NOTES FOR PROBLEMS IN REMEDIES TEACHING MATERIALS xi (1974)).145 ?. Richmond, supra note 23, at 950 (citing ROBERTSTEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM 1850S TO THE 1980S228-29 n.87 (1983)).146 ?. Lerner, Using Our Brains, supra note 13, passim. 147 ?. Id.148 ?. Id. at 654.

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behaviorally oriented, problem based teaching”approach.149

Professor Tzannes generally approves of theproblem-based method of teaching legal ethics anddescribes its use at the University of WesternSydney, Macarthur.150 The technique alsoincorporates small group discussion and some role-play, and it focuses on skills and behavior.151

Instructors create problems that more closelyreflect the likely dilemmas young lawyers willface in practice.152 They can effectively serve thepurpose of sensitizing students to problems theymay soon face as lawyers.153

Professor Green illustrates the use of theproblem-based method by providing a transcript ofthe discussion he led at a large law firm.154

Partners and associates participated in theworkshop.155

d. Simulations and Role-PlaysProfessor Burns asserts that the simulation-

based course offers “the most powerful way to teachcertain fundamental aspects of the subject” andrepresents a better learning experience than othermethods of instruction.156 Research may confirm

149 ?. Id. at 658.150 ?. Tzannes, supra note 55, at 78-80.151 ?. Id. at 79.152 ?. See id. at 79.153 ?. See id. at 61.154 ?. Green, Teaching Lawyers Ethics, supra note 55, at 1101-02.155 ?. Id. passim.156 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 49(emphasis in original); see also MURRAY SCHWARTZ & CARRIE MENKEL-MEADOW,TEACHERS’ MANUAL TO LAWYERS AND THE LEGAL PROFESSION (1985) (providingrole-plays and other experiential exercises for teaching legalethics); Karen Barton et al., Authentic Fictions: Simulation, Professionalism,and Legal Learning, 14 CLINICAL L. REV. 143 (2007); Jay Feinman,Simulations: An Introduction, 45 J. LEGAL EDUC. 469 (1995); Paul S.Ferber, Adult Learning Theory and Simulations—Designing Simulations to Educate

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this conclusion. It shows that students engagedin cooperative learning retain more information,engage in higher-level reasoning and criticalthinking, gain deeper-level understanding, spendmore time on task with less disruptive behavior,show greater motivation to learn, gain greaterability to view situations from other person’sperspectives, build more supportive socialrelationships, express more positive attitudestowards teachers, the subject, learning and theschool, show higher self-esteem, and show greatersocial competence.157 The American Association forHigher Education identifies as “good practice”encouraging cooperation among students.158 Itexplains, “Learning is enhanced when it is morelike a team effort than a solo race. Goodlearning, like good work, is collaborative andsocial, not competitive and isolated. Workingwith others often increases involvement inlearning. Sharing one’s ideas and responding toothers’ reactions improves thinking and deepensunderstanding.”159

Lawyers, 9 CLINICAL L. REV. 417 (2002); Margaret Hazen & Thomas LeeHazen, Simulation of Legal Analysis and Instruction on the Computer, 59 IND. L.J. 195 (1983); Deborah Maranville, Infusing Passion and Context into theTraditional Law Curriculum through Experiential Learning, 51 J. LEGAL EDUC. 51(2001); Menkel-Meadow, The”Infusion” Method at UCLA, supra note 45, at130-32; Suzanne J. Schmitz et al., Session F12: Developing thePerspective of the “Lawyer as Problem Solver” Through Selected Classroom Exercises andSimulations, A.B.A. Section of Disp. Resol. Fourth AnnualConference, New Vistas in Dispute Resolution, in Seattle, Wa.(April 4-6, 2002) (on file with author) (describing an ADR clausedrafting exercise, negotiation exercise, a preventative problem-solving exercise, and a cross-cultural communication exercise);Philip G. Schrag, The Serpent Strikes: Simulation in a Large First-Year Course, 39J. LEGAL EDUC. 555 (1989); Ian Weinstein, Testing Multiple Intelligences:Comparing Evaluation by Simulation and Written Exam, 8 CLINICAL L. REV. 247(2001).157 ?. Groccia et al., supra note 27, at 3. 158 ?. A.W. Gawson & Z.F. Chickering, Seven Principles forGood Practice in Undergraduate Education, AAHE Bulletin (1987),available at http://www.aahe.org/bulletins/articles/sevenprincipals1987.htm.159 ?. Id. at 3-4 (citing A. W. Gawson & Z. F. Chickering,Seven Principles for Good Practice in Undergraduate Education, AAHA BULLETIN

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Simulation-based courses require students toassume various roles—including those of lawyers,clients, judges, witnesses, mediators,arbitrators, and members of a disciplinarycommittee—and to perform tasks in hypotheticalsituations under the supervision and coaching ofan instructor. The simulation allows time forfeedback and reflection.160

In 1997, Professor Tzannes described role-playing and simulations as newer methods forteaching legal ethics to law students.161 Sincethat time, instructors have increasingly usedsimulations and other experiential exercises indoctrinal, skills, and professional responsibilitycourses.162 Professor Tzannes noted the benefits ofthe method, but also recognized the additionalcosts associated with its effective use.163

Instructors using these methods could alsovideotape the simulation and provide feedback tostudents about their performances and the ethicalchoices they made.164

(1987)).160 ?. STUCKEY, BEST PRACTICES, supra note 101, at 179.161 ?. Tzannes, supra note 55, at 63. Roy Stuckey, co-author of Best Practices, agreed that getting law faculty to useactive learning techniques can be difficult. He states: “It is along slog uphill. But we are having discussions and challengingthe status quo in ways that were not possible 10 years ago.” E-mail from Roy Stuckey, Webster Professor Emeritus of ClinicalLegal Education, University of South Carolina School of Law, toauthor (Aug. 25, 2008, 12:09 EST) (on file with author). 162 ?. See supra note 22, at 37 (noting that the simulationcourse is “one of the best received at the law school”); Simon &Landsman, supra note 56, at 326 (describing a videotapedsimulation exercise in which students play the role of witnesses,who are later critiqued by a senior judge); Burns, supra note 156,at 41, 49.163 ?. See supra note 161, at 64.164 ?. Instructors could also use CALI-based MediaNotes toannotate and review videotaped performances. See Larry Farmer,CALI Workshop: How Media Notes can be Used in Skills Courses, Ass’n of Am.Law Schools, 2009 Annual Meeting, in San Diego, Ca. (Jan. 6,2009), available at http://conference.cali.org/sessions/1103.

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Northwestern Law School offers students athree-course ten-credit integrated program thatincludes professional ethics, trial advocacy, andevidence law.165 The two-hour ethics course meetstwice a week.166 The instructor gives a shortlecture providing the “outer limits” of the ethicssubject under study.167 As noted above, in someclasses, faculty members demonstrate a particularsubject or problem that does not lend itself to asimulation experience.168 In other classes, theinstructors rely on simulations.169 Simulations mayextend over two or three classes, with studentsplaying the roles of the lawyers.170 Actors ordrama students play the roles of witnesses orparties.171 In some simulations, a student willplay the role of a senior law firm partner whoconsults with the student-lawyers about anappropriate course of action.172 Other studentswill play the roles of prosecutor and defensecounsel in any subsequent disciplinary proceedingthat arises from the conduct displayed in thesimulation.173 Remaining class members play therole of the members of the disciplinarycommittee.174 After the students deliberate andrender a decision, the instructors lead adiscussion of the issues.175 The instructors askstudents to look beyond the scope of the

165 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 43-47 (noting that in 1995, forty percent of the student bodyenrolled in the program). 166 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 45.167 ?. Id.168 ?. See infra note 273 and accompanying text.169 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 46.170 ?. Id.171 ?. Id. at 45-46.172 ?. Id. at 46.173 ?. Id.174 ?. Id.175 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 46.

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applicable professional rules to broader issues ofprofessional responsibility, values, or norms.176

Professor Hartwell used out-of-class attorney-client simulations to teach legal ethics at theUniversity of San Diego Law School.177 Followingthe simulation, students working in class in smallgroups identified the ethical issue raised in thesimulation, formulated the appropriate course ofaction, reached consensus on the applicable ethicsrule, and justified the application of the rule interms of certain operative principles.178 “Theseprinciples were: (1) the integrity and self-respect of the attorney; (2) the integrity andautonomy of the attorney-client unit; (3) thefairness and efficiency of the legal system; and(4) the public’s right to be informed.”179 Thecourse allowed students “to think about theimmediate moral dilemmas of law practice, and,perhaps more importantly, to rehearse how they aregoing to talk about those dilemmas [in thefuture].”180 He explained further:

[O]ur courses were decidedly “student centered,”in that the students framed the ethical issues fordiscussion and the instructor’s chief role was toclarify and record student responses. Our ethicalproblems were broadly drawn to raise issues thatlawyers face but which were often not amenable tosolution by reference to formal ethical rules.Attendance was very high. Studentevaluations . . . were uniformly favorable.181 Students also worked on weekly quiz questions

designed to help them learn the material tested on

176 ?. Id.177 ?. Hartwell later moved the simulations to scheduledclass periods to accommodate the needs of evening students.Hartwell, supra note 19, at 525.178 ?. Id. at 523.179 ?. Id. at 522-23.180 ?. Id. at 535.181 ?. Id. at 533. Hartwell described the class as lessformal, interactive and “noisy.” Id. at 535.

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the MPRE.182 Hartwell graded the course on a curvewith the grades “bunched” in the center toencourage cooperation among students and to createa more collaborative learning atmosphere.183 Basedon a test administered to students, the coursesignificantly and positively influenced students’moral reasoning.184 While the relationship betweenmore mature moral reasoning and moral conduct isnot clear, Hartwell hypothesizes that enhancing astudent’s moral reasoning should also strengthenhis or her conduct.185

Minnesota experimented with a simulationprogram designed to train new trial judges.186 Itused a mock criminal trial scenario in whichvolunteer lawyers played the roles of trialcounsel.187 It used experienced judges to critiquethe student judges, with particular attention paidto the gender, race, and culture of both sets ofjudges.188 The designers recommended that the stateoffer the course at the beginning of the judge’scareer, again one year later, and thenoccasionally throughout his or her career.189 Thesimulation’s designers also recommended that thecourse (1) allow assigned readings before the

182 ?. Id. at 525.183 ?. Steven Hartwell, Promoting Moral Development ThroughExperiential Teaching, 1 CLINICAL L. REV. 505, 525 (1994-1995).184 ?. “[F]ourteen students made significant gains, threestudents recorded significant losses[,] and thirteen [students]did not change significantly” based on their scores on aKohlberg-based test known as the Defining Issues Test. Id. at526-27.185 ?. Id. at 539.186 ?. Simon & Landsman, supra note 55, passim.187 ?. Id.188 ?. Id. at 326, 331-34.189 ?. The designers believed this repeated reinforcementof the provided information would help the judges transfer thelearned skills into the actual courtroom. Id. at 336. Thissuggestion further supports other persons’ concerns that studentstransfer the learned information, skills, and values outside theclassroom with some difficulty. Groccia, supra note 27, at 5(suggesting a “cone of learning” described supra note 94).

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simulation exercises, (2) take more time, and (3)permit greater reflection by the judges.190 Itsthen-existing design at least achieved the lower-order learning goal of sensitizing new judges tosome of the ethical issues they would likely faceon the bench.191 Somewhat defensively, thedesigners cited the use of simulations in lawschool clinics, law school classes, continuinglegal education offerings, and computer-assistedlegal education programs to explain the reason forthe design of their course.192

In 2008, an assessment of Florida’s trainingprogram for certified mediators found thattrainees wanted to learn about mediation ethicsthrough methodologies other than lectureexclusively.193 The state’s training guidelinespermitted the use of role-play and other creativeapproaches to teaching mediation ethics, butsurveyed trainees apparently saw little use byinstructors of these alternatives.194

e. Live Client Work and ExternshipsClinical professors have long argued that live-

client experiences provide the best opportunitiesfor teaching legal ethics to students,195 but fewclinicians have described their experiences in thelegal literature.196 Notre Dame Law School used aW. M. Keck Foundation grant to design and operate190 ?. Simon & Landsman, supra note 55, at 336.191 ?. Id. at 336. For a discussion of high-order learning,see supra note 90 and accompany text.192 ?. Simon & Landsman, supra note 55, at 323-24.193 ?. See Ansley Barton, Susan Raines & Timothy Hedeen,Improving Mediation Training and Regulation Through Collaborative Assessment,DISP. RESOL. MAG., Spring/Summer 2008, at 47-48.194 ?. Id.195 ?. Hartwell, supra note 19, at 506 n.4.196 ?. Id. (citing to the available literature); seeMenkel-Meadow, The “Infusion” Method at UCLA, supra note 42, at 131(describing the UCLA clinical instructors experimentation withdifferent ways to teach legal ethics).

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clinical legal ethics seminars as an option forstudents.197 The increased cost of providing thisoption was outweighed, Professor Venter argued, bythe method’s “extreme effectiveness.”198

Professor Lerner identified live-client clinicsas the type of learning environment that wouldbetter teach professional ethics by allowingstudents to:

examine and understand the problem as presented bythe client, theorize as to potential solutions,plan and carry out legal research and factualinvestigation, remain open to ongoing re-examination of the critical issues, identifylimits in their own knowledge and overcome thoselimits, integrate knowledge from other disciplinesor domains, learn, build, on their prior learning,exercise judgment, make choices and experiencetheir consequences.199 However, without much explanation, he expressed

concern that in a clinical environment theunpredictability of every case would make it“difficult to plan a problem solving orprofessional responsibility curricularthread . . . .”200 As noted above, ProfessorMorton’s experience in supervising externshipstudents shows that, even in this active learningenvironment, students may resist engaging inhigher-order thinking relating to professionalethics.201

f. Other Teaching MethodsBest Practices provides a long list of other

teaching methodologies that instructors can use in

197 ?. Venter, supra note 22, at 290-93 (describing theclinical legal ethics classes at Notre Dame Law School). 198 ?. Id. at 245 n.33.199 ?. Lerner, Using our Brains, supra note 13, at 694.200 ?. Id. at 694-95.201 ?. See supra note 21 and accompanying text.

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the design of a professional ethics course.202 Theyinclude brainstorming,203 buzz groups,204 free groupdiscussion,205 group tutorial,206 individualtutorial,207 problem-centered groups,208 programmedlearning,209 the syndicate method,210 synectics,211

and the t-group method.212

202 ?. STUCKEY, BEST PRACTICES, supra note 101, at 97-98. 203 ?. Id. at 97 (“An intensive discussion situation inwhich spontaneous suggestions as solutions to a problem arereceived uncritically.”).204 ?. Id. (“Groups of 2-6 students who discuss issues orproblems for a short period, or periods, during a class.”). Thename must come from the sound several groups make as theirmembers discuss a topic or work on a problem. 205 ?. Id. (“A learning situation in which the topic anddirection are controlled by the student group; the teacherobserves.”). 206 ?. Id. (“The topic and general direction is given by thetutor, but the organization (or lack of it), content anddirection of the discussion depends on the student group of up to14 students.”).207 ?. Id. (“A period of teaching devoted to a singlestudent.”). 208 ?. STUCKEY, BEST PRACTICES, supra note 101, at 97 (“Groupsof 4-12 students discussing a specific task.”).209 ?. Id. (“Usually a text or computer program containingquestions each of which must be answered correctly beforeproceeding.”). 210 ?. “Teaching where the class is divided into groups ofabout 6 members who work on the same or related problems withintermittent teacher contact and who write a joint report for thecritical appraisal of the whole class.” Id. at 98.211 ?. Id. (“A development of brain-storming in whichspecial techniques, such as choosing group members from diversebackgrounds, are used to produce a creative solution to aproblem.”). 212 ?. Id. (“A method of teaching self-awareness andinterpersonal relations based on therapeutic group techniques inwhich individual group members discuss their relationships witheach other.”). For other resources on using groups in theclassroom, see also Kirsten K. Davis, Designing and Using Peer Review in aFirst-Year Legal Research and Writing Course, 9 LEGAL WRITING: J. LEGAL WRITINGINST. 1 (2003); Dorothy H. Evensen, To Group or Not to Group: Students’Perceptions of Collaborative Learning Activities in Law School, 28 SO. ILL. U. L.

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4. Methods for Teaching Mediation

EthicsAs noted above, Mary Thompson suggests that

instructors teaching mediation ethics should focuson four “competency areas”: (1) self-awareness ofpotential sources of bias; (2) knowledge ofprofessional standards; (3) analysis of ethicaldilemmas and development of skills to decide on acourse of action; and (4) performance in themoment when the mediator faces an ethicaldilemma.213 She teaches self-awareness using a

J. 343 (2004); Barbara Glesner-Fines, Teaching with Small Groups, THELAW TEACHER, Fall 1999, at 9; Douglas R. Haddock, Collaboration onExaminations, THE LAW TEACHER, Fall 2002, at 1; Elizabeth L.Ingelhart et al., From Cooperative Learning to Collaborative Writing in the LegalWriting Classroom, 9 LEGAL WRITING: J. LEGAL WRITING INST. 185 (2003);Angela M. Kupenda, Risking Collaborative Learning in Core Courses, THE LAWTEACHER, Spring 2002, at 6; Vernellia R. Randall, Increasing Retentionand Improving Performance: Practical Advice on Using Cooperative Learning in LawSchools, 16 T.M. COOLEY L. REV. 201 (1999); Elizabeth Reilly,Deposing the “Tyranny of Extroverts”: Collaborative Learning in the TraditionalClassroom Format, 50 J. LEGAL. EDUC. 593 (2000); Louis Sirico, Try PeerTeaching, THE LAW TEACHER, Fall 2003, at 1; Louis J. Sirico, Jr.,Teaching a Collaborative Seminar, THE LAW TEACHER, Fall 2002, at 5;Brigette L. Willauer, Comment: The Law School Honor Code and CollaborativeLearning: Can They Coexist?, 73 U.M.K.C. L. REV. 513 (2004); Clifford S.Zimmerman, “Thinking Beyond my own Interpretations”: Reflections on Collaborativeand Cooperative Learning Theory in the Law School Curriculum, 31 ARIZ. ST. L. J.957 (1999).213 ?. Thompson, Teaching Ethical Competence, supra note 10, at23.

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personal bias exercise,214 a “stand by your values”exercise,215 and the Prisoner’s Dilemma game.216

Thompson teaches knowledge of professionalstandards governing mediators using a codecomparison exercise and games.217 These exercisesserve the learning objectives of helping studentsrecognize ethical dilemmas when they arise andhelp them anticipate situations in which ethicscode provisions provide conflicting obligations.218

They can also encourage mediators to developmarketing, intake, office procedures, andmediation procedures that avoid appearances of laxethical standards. They may also help mediatorsavoid complaints from unhappy parties, especiallythose lodged with state grievance programs. Inthe first exercise, Thompson presents an ethical214 ?. Students view photos of individuals with diverserace, gender, and cultural backgrounds. The instructor asks thestudents to identify with whom they would most likely be friendsand least likely to be friends. In small groups, the studentsdiscuss the assumptions underlying these judgments. Id. 215 ?. In this exercise, the instructor posts on flipchart paper in different areas of the room possible options tothe resolution of a particular mediated conflict. The instructorasks students to identify the solution they would find mostdifficult to live with as a mediator. Students stand by theoption most difficult for them. They talk with each other aboutwhat that option says about their personal values. Id. 216 ?. This negotiation game helps students identifyvalues and assumptions about competition and cooperation. Id. at1. 217 ?. See also Robin K. Craig, The Plays the Thing: Learning CivilProcedure by Breaking the Routine, THE LAW TEACHER, Spring 1999, at 4(describing the “hot potato” game to use rules of civil proceduregoverning joinder of claims and parties to build a lawsuit);Brannon Heath, The Research Quiz Show, THE LAW TEACHER, Spring 2000, at11; Jennifer L. Rosato, All I Ever Needed to Know about Teaching Law School ILearned Teaching Kindergarten: Introducing Gaming Techniques into the Law SchoolClassroom, 45 J. LEGAL EDUC. 568, 570-71 (1995) (explaining the useof games in class to increase student comprehension of a largeamounts of discrete information, including a discovery game basedon the Buffalo Creek disaster (Buffalo Creek Family Feud), a gamefor civil procedure class that examines class action rules (ClassAction Jeopardy), and a game based on the TV series Law and Order).218 ?. Thompson, Teaching Ethical Competence, supra note 10, at23.

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dilemma to the students.219 Working in smallgroups, they analyze it under several differentmediation codes. It helps students identify thesimilar and different approaches taken by commonmediator codes.220

I have used her suggestion to adapt populartelevision game shows to test students’ knowledgeof mediation codes of ethics. My law schoolstudents especially enjoy playing Mediation EthicsJeopardy, a Power Point game I created to teach themspecific provisions of the Virginia ethics codefor mediators.221 They play for Monopoly money.Members of the team with the highest bank accountat the end of the class hour get a box of LuckyCharms, fifteen ounce cans of Green Giant sweetpeas, and law books no one else wants.222 With thehelp of a computer savvy research assistant, Ialso developed a game called You can be a Survivor on ADRIsland. It plays like Who Wants to be a Millionaire,complete with the option to reduce the multiple-choice answers by fifty percent. But, if a teamfails to answer a question correctly, they mustvote a member off the team like the TV realityshow, Survivor. The team with the most membersremaining at the end of the game wins the sameprizes mentioned above. I use this game toapprise 1Ls of the role ADR plays in the currentresolution of legal disputes. I could easilyconvert it to an ethics learning game.

An instructor at one national ADR conferenceused a multiple-choice PowerPoint game thatparticipants played in groups to test their recall219 ?. Id.220 ?. Id. at 2.221 ?. I am happy to share a copy of this game with otherethics instructors.222 ?. I retrieve these books from a stack that developsover time in our law school business office. Faculty membersreceive books from publishers that they do not want. They putthem on the stack. Other faculty members can then take booksfrom the stack if they like. Any book left over after thatbecomes a prize for the Jeopardy game.

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(stage 3 learning) of the provisions of the 2005Model Standards of Conduct for Mediators.223 Whilethese games may help students identify codeprovisions or reinforce their learning of specificconcepts, they do not lend themselves to a deeperdiscussion of ethical values.

Thompson teaches students how to analyze anethical dilemma and choose a course of actionusing hypothetical situations.224 She calls theseexercises the “most challenging for trainers [and]frustrating for trainees looking for the ‘right’answer.”225 This competency, however, is “crucialto ethical practice.”226 Mediators competent inthese skills should know what questions to askwhen analyzing a dilemma, choose betweenconflicting principles of practice, understandwhen the mediator needs to take action, and defendthe choice he or she has made.227 To teach theseskills, she uses a decision tree analysis of anethical dilemma,228 an exercise called “Where do youDraw the Line?”229 and an exercise called “DefendYourself.”230

223 ?. MODEL STANDARDS OF CONDUCT FOR MEDIATORS, ABANET.ORG(2005), available athttp://www.abanet.org/dispute/news/ModelStandardsofConductforMediatorsfinal05.pdf.224 ?. Thompson, Teaching Ethical Competence, supra note 10, at23.225 ?. Id. 226 ?. Id.227 ?. Id.228 ?. Id. (stating that students use a case study and adecision-tree model to arrive at an ethical solution to thedilemma).229 ?. In this exercise, students assume that the partieshave asked the mediator for advice. Using a continuum of five toseven responses, arranged from most to least directive, thestudents analyze which responses support or undermine party self-determination and mediator impartiality. Id. at 1. 230 ?. Students work in small groups, with three studentsplaying the part of a grievance committee. They must consider acomplaint filed by a party to a mediation. A fourth student playsthe role of the mediator who must justify his or her actions tothe committee. Thompson, Teaching Ethical Competence, supra note 10, at

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Thompson helps students put theory intopractice using several activities including role-play, stop-action demonstrations, and a “quickdecisions” exercise.231 In the role-play exercise,the instructions for the students who play theroles of each party create an ethical dilemma.232

The third student, playing the mediator, must dealwith it “in the moment.”233 In the stop-actiondemonstration, the students stop the role-playwhen they spot an ethical dilemma.234 Theinstructor helps them discuss the dilemma, choosea course of action, and implement it in the role-play.235 They then discuss the effect of the chosenresponse.236 In the quick decision exercise,students working in groups of three, play the roleof parties and the mediator.237 The instructions tothe parties create an ethical dilemma.238 Themediator responds in the moment.239 The entiregroup then offers feedback about whether themediator’s response was ethical and effective.240

The exercise continues for several rounds untilall students have played the role of mediator.241

Charles Pou, expanding on his thoughtspublished in an earlier article,242 suggests thatmediators develop an informal system that enhancesmediation ethics by encouraging the discussion ofthe relationship between ethics and good practice,by providing a hotline or other real-time ethics23.231 ?. Id.232 ?. Id.233 ?. Id.234 ?. Id.235 ?. Id. 236 ?. Thompson, Teaching Ethical Competences, supra note 10, at23.237 ?. Id.238 ?. Id.239 ?. Id.240 ?. Id.241 ?. See id. 242 ?. Pou, Embracing Limbo, supra note 53, at 211-13.

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feedback for mediators, by creating ethicswebsites and other informational sources, bydeveloping case studies for use in mediationethics training, and by fostering peer or expertdiscussion groups that could focus on ethicalissues.243

The researchers who assessed the training ofcertified mediators in Florida recommended thattrainers teach mediation ethics using role-play,scenario analysis, discussion, video analysis, andreview of actual ethics complaints.244 All of thesetechniques involve active or interactive learningand would facilitate the students’ learning of thetheory and skills needed for ethical mediationpractice.

F. Assessing Student Learning

Finally, the instructor must decide how toassess whether students have met the learningobjectives of the course. Have they learned whatthe instructor intended they should learn? Ifnot, the instructor can consider changing thecourse to enhance student learning.

1. Best Practices for AssessmentThe authors of Best Practices devote over thirty

pages to the principles governing studentassessment.245 Assessment measures can be used torank and sort students for the job market(summative).246 Or, an instructor can use them to243 ?. Charles Pou, Jr., Assuring Excellence, or Merely Reassuring?Policy and Practice in Promoting Mediator Quality, 2004 J. DISP. RESOL. 303,343-44.244 ?. See Barton, Raines & Hedeen, supra note 193, at 47,49.245 ?. STUCKEY, BEST PRACTICES, supra note 101, at 175-97.246 ?. Friedland, Law School Evaluation, supra note 41, at 155.

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provide learning feedback to students(formative).247 Best Practices identifies theshortcomings in the assessment practices of U.S.law schools.248 Its authors also identify the bestpractices for assessing student learning as (1)being clear about goals of each assessment; (2)assessing whether students learned what theinstructor taught (as opposed to testing topicsnot taught by the instructor); (3) conductingcriteria-referenced assessments, rather than norm-referenced assessments (also known as reliabilityof the assessment method); (4) using assessmentsto inform students of their level of professionaldevelopment; (5) being sure the assessment isfeasible in light of the subject, time, trainingrequired to implement the assessment, equipment ortechnology needed, number of assessments required,and financial cost; (6) using multiple assessmentmethods; (7) distinguishing between formative andsummative assessments;249 (8) conducting formativeassessments throughout the term of the course; (9)conducting multiple summative assessmentsthroughout the term of the course, when possible;(10) ensuring that summative assessments are alsoformative assessments; and (11) requiring studentsto compile educational portfolios.250

247 ?. Id. at 155, 198, 204-10. Another author says that weuse assessments “(1) to screen candidates for admission, grades,rank or employment . . . (2) to determine awards and honors; (3)to determine the most effective educational pedagogies; and (4)to foster self-knowledge and development.” See Neil Hamilton,Assessing Professionalism: Measuring Progress in the Formation of an EthicalProfessional Identity, 5 U. ST. THOMAS L. J. 470, 498 (2008).248 ?. STUCKEY, BEST PRACTICES, supra note 101, at 176-78.249 ?. The authors of Best Practices explain that a formativeassessment provides feedback about learning to students andinstructors. The instructor may score the assessment tool, buttreats it as educational and not as a tool for grading or rankingstudents. Id. at 191. A professor uses a summative assessment toassign a grade to a student’s level of achievement, typically atthe end of a course. Id. at 191. 250 ?. Id. at 196-97. Hamilton also wants assessments ofprofessional and ethical development of law students to be

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2. Assessment Methods in the Professional EthicsCourseInstructors can use a number of tools to assess

student learning of legal or mediation ethics.251

Obviously, the chosen assessment tool shouldreflect the learning objectives of the course.252

a. ExamsProfessor Friedland notes that a “valid” exam

should measure what the professor wanted thestudents to learn.253 “For example, a written lawschool examination might test: (1) the student’sknowledge of the subject; (2) the accuracy of thestudent’s recall of the knowledge and hisunderstanding of it; (3) how effectively andaccurately this knowledge can be communicated; (4)how skillfully and efficiently this knowledge can

longitudinal to show development and change over time, beconfidential so students need not fear that someone could lateruse the assessment data to cause the student publicembarrassment, have broad buy-in from students, and be coupledwith ample opportunities for feedback, developmental coaching,and educational enrichment programs. Hamilton, supra note 247,at 500.251 ?. See generally A.B.A., SECTION ON LEGAL EDUC. AND ADMISSIONTO THE BAR, SPECIAL COMM. ON OUTPUT MEASURES, INTERIM REPORT OF THE OUTCOMEMEASURES COMM. (May 12, 2008), available athttp://www.abanet.org/legaled/committees/OutcomeMeasures.doc(discussing the use of output measures in the accreditationprocess); see supra at notes 245-51 and infra at notes 252-85 andaccompanying text. Teaching objectives can include: coveringsubstantive rules or statutes; issue-spotting; teaching legalanalysis; teaching anologic reasoning; teaching synthesis; usingprecedent and policy to argue persuasively; teaching judgment;encouraging problem-solving and creative thinking; exploringethical and professional issues; and teaching practice skills.Friedland, Law School Evaluation, supra note 41, at 185 (re-ordered toindicate activities requiring increasing cognitive processing).252 ?. See supra notes 56-77 and infra notes 265-69 andaccompanying text.253 ?. Friedland, Law School Evaluation, supra note 41, at 158-59.

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be applied to particular circumstances; and, (5)how rapidly these functions can be accomplished inan exam situation.”254 Exams can take severalforms: essay, short answer, selected responses ormultiple-choice, true/false, or guided essay.255

Professor Lupica used a five-day take-home examto assess the performance of the sixteen studentsin her legal ethics seminar class.256 The grade onthe exam counted as fifteen percent of thestudent’s grade.257 She gave students an articleexcerpt giving one perspective on a subject oflawyer professionalism.258 Students then wrote aneight to ten page essay that Professor Lupicahoped would reveal their evolution through thestages of moral reasoning.259 After threesemesters, she concluded that the students learnedmore in this course than they had in the courseshe had taught by the Socratic method.260 Theessays showed detailed analysis, carefulreflection, a higher level of moral sensitivity,and greater facility with the range of analyticalframeworks used in the course.261

In the context of mediation, the Associationfor Conflict Resolution (“ACR”) recommended in2002 that mediators, seeking ACR’s certification,first pass a written exam covering eleven areas ofknowledge, including communication, conflicttheory, content management and resources, culturaldiversity, ethics, history of mediation, models,strategies and styles, negotiation, processstructure, role of third party, and systems and

254 ?. Id.255 ?. Id. at 164-66. See Hamilton, supra note 247, at 501for a discussion of other assessment tools a trainer could use inteaching professional ethics.256 ?. Lupica, supra note 13, at 79.257 ?. Id.258 ?. Id.259 ?. Id.260 ?. Id.261 ?. Id.

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group dynamics.262 In the 2008 assessment of theFlorida training programs for certified mediators,surveyed persons supported the use of a writtentest to show that each trainee had mastered basicconcepts of mediation ethics.263 Utah Supreme CourtRule 4-510, governing the court-connected ADRprogram, requires new applicants to the roster ofADR providers to pass an examination on theapplicable Code of Ethics.264

b. Performance EvaluationsThe law academy has given the role of

performance evaluation more attention in recentyears.265 Best Practices recommends that (1) theinstructors digitally record or videotape studentperformances as often as possible to facilitatestudent and faculty review; (2) faculty receivetraining in the best practices for providingfeedback; and (3) students receive training in howto receive feedback.266

Some mediation programs require mediators toprove a minimum level of competence, includingethical awareness, through performance-basedevaluations.267 Several mediation instructors have262 ?. See ACR CERTIFICATION TASK FORCE, supra note 84.263 ?. See Barton, Raines & Hedeen, supra note 193, at 49-50.264 ?. UTAH CT. RULES R. 4-510(3)(B)(ii) (2007) (referringto Utah Ct. Rules R. 104 (2007)), available athttp://www.utcourts.gov/resources/rules/ucja/ch04/4-510.htm. 265 ?. See, e.g., STUCKEY, BEST PRACTICES, supra note 101, at 128-31.266 ?. Id. at 128-29 (describing guidelines for performingeffective critiques).267 ?. Robert A. Baruch Bush, One Size Does Not Fit All: A PluralisticApproach to Mediator Performance Testing and Quality Assurance, 19 OHIO ST. J.ON DISP. RESOL 965, 1000-03 (2004) (concluding no currentperformance test can adequately assess mediators with differentstyles or skills and suggesting different tests for differentmodels of mediation practice); Roselle L. Wissler & Robert W.Rack, Jr., Assessing Mediator Performance: The Usefulness of ParticipantQuestionnaires, 2004 J. DISP. RESOL. 229, 238-57 (proposing the use of

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advocated the use of videotaped performanceassessments268 or other assessment processes.269 Afew states require new mediators to work with amentor who is a more experienced mediator.270 Insome of these states, the mentor provides writtenand verbal feedback that the state certificationauthority may also review.271

c. Weekly Papers or Student JournalsThe instructors in the legal ethics program at

Northwestern Law School evaluate the journalsstudents write and their performances insimulations.272 The journals contained the

participant evaluations as a way to enhance mediator quality,based on a study in the federal courts as well as a discussion oftheir potential usefulness); see also Beryl Bluestones, Teaching LawStudents to Self-Critique and to Develop Critical Clinical Self-Awareness in Performance,13 CLINICAL L. REV. 143 (2006) (describing the pitfalls of thecurrent method); Stuckey, Teaching With Purpose, supra note 56, at827-28.268 ?. See, e.g., Lisa G. Cohen & Brad Heckman, Session G3:Caught on Videotape: Using Video Feedback and Other Tools to Ensure MediatorQuality, ABA Section of Dispute Resolution, Ninth AnnualConference, ADR in Bloom (April 25-26, 2007); see also Farmer, supranote 164; Kimberlee Kovach, Virtual Reality Testing: The Use of Video forEvaluation in Legal Education, 46 J. LEGAL EDUC. 233, 235-44 (1996).269 ?. See Barton, Raines & Hedeen, supra note 193, at 47-50.270 ?. For an example of the requirements of a mentorprogram, see Office of the Exec. Sec. Sup. Ct. of Va., Guidelines forthe Training and Certification of Court-Referred Mediators (2007), available athttp://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/ certification_process/mentorship_guidelines.pdf (lastvisited Dec. 10, 2010). Florida and Maryland also require newmediators to work with a mentor. See, e.g., Fla. Sup. Ct. Admin.Order No. AOSC08-23, supra note 109, at 195; MD. R. CIV. P. R. 17-104(a)(5), 17-104(b)(3), 17-104(d)(3).271 ?. See, e.g., Office of the Exec. Sec. Sup. Ct. of Va.,Mentorship Guidelines for the Certification of Court-Referred Mediators 6 (2007),available at http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/certification_process/mentorship_guidelines.pdf, at § III(1) (last visitedDec. 10, 2010).272 ?. Burns, Teaching the Basic Ethics Class, supra note 22, at 45.

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student’s analysis of five simulation exercisesinvolving legal ethics.273

d. Class ParticipationProfessor Lupica based fifty percent of a

student’s final grade in her sixteen-student legalethics seminar on the student’s classparticipation.274 For each class, she assigned twostudents as discussion leaders.275 They designed anapproach to the presentation of the material andthe burden shifted to them to encouragediscussion.276 With this motivation, all studentsactively participated.277 Some students met thisburden by designing role-plays.278 Other studentsframed questions for debate.279 Professor Lupicaremarked that the students “engage[d] the materialwith an intensity I had never before seen.280 Theintensity was contagious. With every class, thediscussion rose to an increasingly moresophisticated level.”281

e. Other Methods of Assessing Student LearningThe authors of Best Practices identify several

formative assessment methods that instructors ofprofessional ethics courses could use.282 Theyinclude practice exams, short homeworkassignments, self-scoring computer quizzes,

273 ?. Id. at 47; Venter, supra note 22, at 292 n.24.274 ?. Lupica, supra note 13, at 78.275 ?. Id.276 ?. Id.277 ?. Id.278 ?. Id.279 ?. Id.280 ?. Lupica, supra note 13, at 78.281 ?. Id.282 ?. STUCKEY, BEST PRACTICES, supra note 101, at 191-94.

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exercises, “The Minute Paper” and other shortanswers to questions about the lesson of theclass, misconception checks, preconception checks,empty outlines,283 categorization grids, definingfeatures matrices,284 classroom opinion polls,course-related self-confidence surveys, electronicmail feedback, a group instruction feedbacktechnique, and clickers.285

V. FUTURE ARTICLES ON TEACHING MEDIATION ETHICSIn a series of future articles, focused on the

core values of mediation—mediator impartiality,party self-determination, confidentiality, andquality of the process, I plan to examine indetail the active learning or interactive teachingmethodologies I have used to teach mediator ethicsin a workshop or law school classroom. Thesetechniques include short lectures, buzz groupdiscussions, video clips, a defining featuresmatrix or analytical grid, and exercises based ongrievances filed against Florida mediators. Thesearticles will illustrate how an instructor can usethese grievance exercises to assess studentlearning of mediator ethical values. The articleswill make these grievances available to ethicstrainers for the first time. Finally, thearticles will provide an analysis of the learningobjectives met in the workshop and class, and they283 ?. Michael Schwartz, Using Course Webpages to Fill Gaps WithinTraditional Law School Instruction 2, JURIST, May 2003, available athttp://jurist.law.pitt.edu/lessons/lesmar03.php (last visitedDec. 10, 2010) (discussing use of skeletal outlines to remedypoor note-taking skills of students).284 ?. Kevin C. McMunigal, Diagramming Crimes, THE LAW TEACHER,Fall 2004, at 1; Charles B. Sheppard, The Grading Process: Taking aMultidimensional, “Non-Curved” Approach to the Measurement of a First-Year LawStudents’ Level of Proficiency, 30 W. ST. U. L. REV. 192 n.42 (2002)(describing exercises that include graphic organizers or otherwork product that the instructor partially completes and thestudent then fully completes).285 ?. STUCKEY, BEST PRACTICES, supra note 101, at 192-94.

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will suggest how I could improve the training.They conclude that instructors can find ways tomake the topic of mediation ethics interesting,understandable, applicable to practice, and fun.

VI.CONCLUSION At the beginning of this Article, I posed

several questions about my own professional andethical growth as a mediator. The change in myown perspective about professional ethics reflectsmy stage of ego, cognitive, and moral developmentand my increasing experience as a lawyer andmediator with the ethical issues we face asprofessionals. It also reflects my concern thatparties—whether legal clients or mediationparticipants—come away from the dispute resolutionprocess feeling they have gotten proceduraljustice and a substantive outcome that servestheir basic interests and psychological needs. Italso reflects my concern for the reputation oflawyers and mediators with the public and for thereputation of the courts that handle disputes orrefer parties to mediation.

We can create the same level of enthusiasm forlegal and mediation ethics in new professionals byproviding well-designed ethics training programsthat simulate the ethical dilemmas we face inpractice and that use other active learningtechniques. We need to garner the time andresources required to offer ethics training inhighly interactive sessions that engage studentsin higher-order thinking. We should also continueto design assessment tools that help us analyzewhether students and trainees have learned thevalues we wish to impart.

Documents

Teaching Professional Ethics to Lawyers and Mediators