Lights, camera, begin final exam: Testing what we teach in negotiation courses

Journal of Legal Education

Volumn 54, Issue 1, 2004, Pages 91-114

  Moffitt, Michael ^a  

^a UNIVERSITY OF OREGON   (United States)

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EID: 3042740973     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (75)

1. See Robert E. Matthews, A Pedagogical Challenge, 6 J. Legal Educ. 93 (1953); James J. White, The Lawyer as a Negotiator: An Adventure in Understanding and Teaching the Art of Negotiation, 19 J. Legal Educ. 337 (1967); Carrie Menkel-Meadow, Legal Negotiation: A Study of Strategies in Search of a Theory, 4 Am. Bar Found. Res. J. 905, 908 (1983) [hereinafter Legal Negotiation] ; Carrie Menkel-Meadow, Mothers and Fathers of Invention: The Intellectual Founders of ADR, 16 Ohio St. J. on Disp. Resol. 1 (2000). The American Bar Association Section of Dispute Resolution conducts periodic surveys of all U.S. law schools regarding their dispute resolution offerings. The most recent survey is available online at 〈http://www.law.uoregon.edu/aba/〉 (last visited Mar. 29, 2004).
2. See Robert E. Matthews, A Pedagogical Challenge, 6 J. Legal Educ. 93 (1953); James J. White, The Lawyer as a Negotiator: An Adventure in Understanding and Teaching the Art of Negotiation, 19 J. Legal Educ. 337 (1967); Carrie Menkel-Meadow, Legal Negotiation: A Study of Strategies in Search of a Theory, 4 Am. Bar Found. Res. J. 905, 908 (1983) [hereinafter Legal Negotiation] ; Carrie Menkel-Meadow, Mothers and Fathers of Invention: The Intellectual Founders of ADR, 16 Ohio St. J. on Disp. Resol. 1 (2000). The American Bar Association Section of Dispute Resolution conducts periodic surveys of all U.S. law schools regarding their dispute resolution offerings. The most recent survey is available online at 〈http://www.law.uoregon.edu/aba/〉 (last visited Mar. 29, 2004).
3. See Robert E. Matthews, A Pedagogical Challenge, 6 J. Legal Educ. 93 (1953); James J. White, The Lawyer as a Negotiator: An Adventure in Understanding and Teaching the Art of Negotiation, 19 J. Legal Educ. 337 (1967); Carrie Menkel-Meadow, Legal Negotiation: A Study of Strategies in Search of a Theory, 4 Am. Bar Found. Res. J. 905, 908 (1983) [hereinafter Legal Negotiation] ; Carrie Menkel-Meadow, Mothers and Fathers of Invention: The Intellectual Founders of ADR, 16 Ohio St. J. on Disp. Resol. 1 (2000). The American Bar Association Section of Dispute Resolution conducts periodic surveys of all U.S. law schools regarding their dispute resolution offerings. The most recent survey is available online at 〈http://www.law.uoregon.edu/aba/〉 (last visited Mar. 29, 2004).
4. See Robert E. Matthews, A Pedagogical Challenge, 6 J. Legal Educ. 93 (1953); James J. White, The Lawyer as a Negotiator: An Adventure in Understanding and Teaching the Art of Negotiation, 19 J. Legal Educ. 337 (1967); Carrie Menkel-Meadow, Legal Negotiation: A Study of Strategies in Search of a Theory, 4 Am. Bar Found. Res. J. 905, 908 (1983) [hereinafter Legal Negotiation] ; Carrie Menkel-Meadow, Mothers and Fathers of Invention: The Intellectual Founders of ADR, 16 Ohio St. J. on Disp. Resol. 1 (2000). The American Bar Association Section of Dispute Resolution conducts periodic surveys of all U.S. law schools regarding their dispute resolution offerings. The most recent survey is available online at 〈http://www.law.uoregon.edu/aba/〉 (last visited Mar. 29, 2004).
5. As part of the research supporting this article, my research assistants and I surveyed more than 100 law schools' curricular offerings related to negotiation. Among the information collected was the principal objective of negotiation courses. Most of them cite skills development as a primary focus.
6. "[T]o attribute a behavioral change to learning, the change must be relatively permanent and must result from experience." B. R. Hergenhahn, An Introduction to Theories of Learning, 2d ed., 7 (Englewood Cliffs, 1982). See also Menkel-Meadow, Legal Negotiation, supra note 1, at 934.
7. "[T]o attribute a behavioral change to learning, the change must be relatively permanent and must result from experience." B. R. Hergenhahn, An Introduction to Theories of Learning, 2d ed., 7 (Englewood Cliffs, 1982). See also Menkel-Meadow, Legal Negotiation, supra note 1, at 934.
8. See, e.g., Douglas A. Henderson, Uncivil Procedure: Ranking Law Students Among Their Peers, 27 U. Mich. J.L. Reform 399 (1994); Daniel Keating, Ten Myths About Law School Grading, 76 Wash. U. L.Q. 171, 174-75 (1998).
9. See, e.g., Douglas A. Henderson, Uncivil Procedure: Ranking Law Students Among Their Peers, 27 U. Mich. J.L. Reform 399 (1994); Daniel Keating, Ten Myths About Law School Grading, 76 Wash. U. L.Q. 171, 174-75 (1998).
10. "The behaviorist would emphasize behavioral trial and error; the cognitivist would emphasize cognitive, or vicarious, trial and error, that is, thinking." Hergenhahn, supra note 3, at 408. A possible exception to this view of experimentation lies in the so-called "programmed learning" model popularized by B. F. Skinner. See id. at 410-13. The programmed learning model seems less relevant to a skill like negotiation, since negotiation does not lend itself well to linearly sequenced prescriptions.
11. "The behaviorist would emphasize behavioral trial and error; the cognitivist would emphasize cognitive, or vicarious, trial and error, that is, thinking." Hergenhahn, supra note 3, at 408. A possible exception to this view of experimentation lies in the so-called "programmed learning" model popularized by B. F. Skinner. See id. at 410-13. The programmed learning model seems less relevant to a skill like negotiation, since negotiation does not lend itself well to linearly sequenced prescriptions.
12. Some of the most interesting and productive classroom conversations I have witnessed have followed simulations in which a student experimented with an approach that did not produce the result he expected. When students come back to the group to share their experiences candidly, without excessive focus on how the group may assess the strategic decision, the resulting conversation is invariably rich. Why did you think to try this? What impact did it have on the other party? How would you modify it in the future? The classes tend to facilitate themselves, to the delight of the students and me. The level of personal comfort required to report on self-created disasters need not be as high as one might suspect. As long as a student is not graded on the quality of her performance, she has little incentive to be self-promoting. Indeed, in some classes I have gotten the sense that students define their prowess not in terms of their ability to execute a flawless negotiation strategy, but in terms of identifying the flaws in strategies they applied.
13. I draw the labels for this distinction from Roger Fisher & Alan Sharp, Getting It Done: How to Lead When You're Not in Charge 160-63 (New York, 1998). See also Gerald F. Hess, Heads and Hearts: The Teaching and Learning Environment in Law School, 52 J. Legal Educ. 75, 105-06 (2002) ("summative assessments" and "formative assessments").
14. I draw the labels for this distinction from Roger Fisher & Alan Sharp, Getting It Done: How to Lead When You're Not in Charge 160-63 (New York, 1998). See also Gerald F. Hess, Heads and Hearts: The Teaching and Learning Environment in Law School, 52 J. Legal Educ. 75, 105-06 (2002) ("summative assessments" and "formative assessments").
15. Many of us hesitate to give negative feedback. But for reasons not entirely clear to me, when we do give negative feedback, we tend to be more specific and operational than when we give positive feedback. As a result, it is understandable that people think of "useful feedback" or "constructive feedback" as necessarily negative. In practice, positive feedback can be at least as constructive as negative feedback, provided it is similarly specific and operational. To tell a student she "did very well" tells her nothing about what exactly you saw her do, why you think it was good, or what she might do to repeat that aspect of her performance.
16. In my experience, and based on my conversations with faculty at a number of law schools, pass/fail classes today generally mean "pass" classes. Few students fail to receive credit in ungraded courses. This has not always been true. For a fascinating historical account of the once-high rates of attrition in pass/fail law courses, see Steve Sheppard, An Informal History of How Law Schools Evaluate Students, with a Predictable Emphasis on Law School Final Exams, 65 UMKC L. Rev. 657, 672-76, 687-88 (1997).
17. Simple letter grades are surely imperfect vehicles for feedback. Indeed, they may be worse than no feedback at all. But if the grading process forces a teacher to observe and assess some aspect of the student's performance in a way that may prompt a conversation, doing away with grades may mean a lost opportunity.
18. Charles Craver conducted a comparative assessment of students taking the negotiation course for grades and those taking it on a pass/fail basis. He found no significant difference in the results obtained in simulated negotiations. See Charles B. Craver, The Impact of Student GPAs and a Pass/Fail Option on Clinical Negotiation Course Performance, 15 Ohio St. J. on Disp. Resol. 373 (2000). This suggests, but does not prove, that his students put in similar effort. With outcome-based grading it is impossible to know whether students' results are linked to effort or to some other variable.
19. A parallel risk is that teachers who use final examinations as assessment tools may focus their courses on aspects of negotiation that can be descriptively isolated, defended, and ultimately assessed. These easily tested aspects tend to disfavor the prescriptive aspects of negotiation theory. See Bruce Patton, On Teaching Negotiation, in Teaching Negotiation: Ideas and Innovations, ed. Michael Wheeler, 11-12 (Cambridge, Mass., 2000) ("If your goal is description, the incentive is to focus attention on the most enduring and stable characteristics of the human system you are describing. . . . [T]he goal of description is too easily satisfied: the product need only be 'true.' 'Women live longer than men.' Prescriptive theory is judged by a sterner standard - it must be useful. 'To increase your life expectancy by seven years, don't smoke.'") [hereinafter Teaching Negotiation].
20. This assumes, of course, that the student is actually working on the paper during the course, not just at the end. This is surely not the universal pattern, but a creative teacher can find ways to encourage or require students to work on their papers throughout the semester.
21. See John D. Bransford, How People Learn: Brain, Mind, Experience, and School 131-54 (Washington, 2000).
22. For example, I am convinced that a student who chooses a good topic for a final paper is at a significant advantage over a classmate who selects a less suitable topic. If I try to ignore the difference caused by the different topics, I am likely to fail. If I try to address the potential for bias by explicitly rewarding the student who cleverly identified a good topic, I am rewarding behavior that the course did not even purport to teach. I have never taught a course on topic narrowing and research methodology, nor do I expect I would be any good at it. Variation in topic necessarily produces some variation in evaluation.
23. See, e.g., Mary Pat Truhart, The Use of Journals, in Techniques for Teaching Law, eds. Gerald F. Hess & Steven I. Friedland, 253-55 (Durham, N.C., 1999).
24. Most students enter Civil Procedure knowing very little about the civil litigation process, and over the semester their understanding may grow quickly. If the student plans her studies well, the level of understanding peaks just around the time of the final exam. Any honest assessment recognizes that her understanding then decreases following the exam. Perhaps this just says something about me and the way I teach Civil Procedure. I doubt, though, that I am alone in the experience that my students are more likely to know the details of the preclusion doctrines just before the exam than they are six months later.
25. See William R. Torbert, Learning from Experience: Toward Consciousness 37-61 (NewYork, 1972); Patton, supra note 12, at 16-17; Mary-Lynne Fisher & Arnold I. Siegel, Evaluating Negotiation Behavior and Results: Can We Identify What We Say We Know? 36 Cath. U. L. Rev. 395, 412 (1987) James R. Elkins, Writing Our Lives: Making Introspective Writing a Part of Legal Education, 29 Willamette L. Rev. 45, 59 (1993).
26. See William R. Torbert, Learning from Experience: Toward Consciousness 37-61 (NewYork, 1972); Patton, supra note 12, at 16-17; Mary-Lynne Fisher & Arnold I. Siegel, Evaluating Negotiation Behavior and Results: Can We Identify What We Say We Know? 36 Cath. U. L. Rev. 395, 412 (1987) James R. Elkins, Writing Our Lives: Making Introspective Writing a Part of Legal Education, 29 Willamette L. Rev. 45, 59 (1993).
27. See William R. Torbert, Learning from Experience: Toward Consciousness 37-61 (NewYork, 1972); Patton, supra note 12, at 16-17; Mary-Lynne Fisher & Arnold I. Siegel, Evaluating Negotiation Behavior and Results: Can We Identify What We Say We Know? 36 Cath. U. L. Rev. 395, 412 (1987) James R. Elkins, Writing Our Lives: Making Introspective Writing a Part of Legal Education, 29 Willamette L. Rev. 45, 59 (1993).
28. See William R. Torbert, Learning from Experience: Toward Consciousness 37-61 (NewYork, 1972); Patton, supra note 12, at 16-17; Mary-Lynne Fisher & Arnold I. Siegel, Evaluating Negotiation Behavior and Results: Can We Identify What We Say We Know? 36 Cath. U. L. Rev. 395, 412 (1987) James R. Elkins, Writing Our Lives: Making Introspective Writing a Part of Legal Education, 29 Willamette L. Rev. 45, 59 (1993).
29. This is particularly true when considered through the lens of sustained practice. After the negotiation course, no one will be around to tell a student what he should reflect on following a particular experience. Ideally, a student will have sufficient practice recognizing the internal and external cues in negotiations to know when significant learning opportunities present themselves.
30. See Joseph A. Maxwell, Qualitative Research Design: An Interactive Approach 91 (Thousand Oaks, 1996); Carl G. Jung, Aion: Researches into the Phenomenology of Self, trans. R. F. C. Hull, 2d ed., 226 (Princeton, 1975).
31. See Joseph A. Maxwell, Qualitative Research Design: An Interactive Approach 91 (Thousand Oaks, 1996); Carl G. Jung, Aion: Researches into the Phenomenology of Self, trans. R. F. C. Hull, 2d ed., 226 (Princeton, 1975).
32. The least pleasant of these journals can be summarized: "Everything we have talked about is brilliant-even the things that contradict other things we have talked about." When I took my first law school course in negotiation, my grade was based on reflective journals. One of my teachers, a coauthor of Getting to Yes, told me, "The easiest way to get an A in this class is to write a solid critique of Getting to Yes. Don't just talk to me about what's already in there." Having read several hundred students'journals over the years, I tend to think that thoughtless critique is just as tedious as shallow praise, but I can easily understand the concern that motivated my former teacher's comment. See Roger Fisher et al., Getting to Yes: Negotiating Agreement Without Giving In, 2d ed. (Boston, 1991).
33. Once, earlier in my career, I adopted this grading method while teaching two sections of Negotiation. I can hardly overstate the time burden my course structure created. Since then I have experimented with less frequent journals, with ungraded journals, and with optional journals - all in an effort to reduce the time demands. Honesty compels me to report that all of these efforts were both easier on me and less effective for the students. Someone recently suggested that I might consider grading only a random selection of journals, thus creating some incentive while reducing the time spent grading.
34. Among the most tedious journals to read are those that attempt to provide coverage akin to a shallow newspaper story-recounting who said what each step of the way, but analyzing very little of what occurred.
35. See Scott R. Peppet, Teaching Negotiation Using Web-Based Streaming Video, Negot. J., July 2002, at 271; Chris Argyris, Teaching Smart People How to Learn, Harv. Bus. Rev., May-June 1991.
36. See Scott R. Peppet, Teaching Negotiation Using Web-Based Streaming Video, Negot. J., July 2002, at 271; Chris Argyris, Teaching Smart People How to Learn, Harv. Bus. Rev., May-June 1991.
37. See Menkel-Meadow, Legal Negotiation, supra note 1, at 933; Fisher & Siegel, supra note 18, at 401; Gerald Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. Legal Educ. 307, 311-12 (1984).
38. See Menkel-Meadow, Legal Negotiation, supra note 1, at 933; Fisher & Siegel, supra note 18, at 401; Gerald Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. Legal Educ. 307, 311-12 (1984).
39. See Menkel-Meadow, Legal Negotiation, supra note 1, at 933; Fisher & Siegel, supra note 18, at 401; Gerald Williams, Using Simulation Exercises for Negotiation and Other Dispute Resolution Courses, 34 J. Legal Educ. 307, 311-12 (1984).
40. White was unapologetic about his belief that the appropriate negotiation skill to measure is "the lawyer's role as person manipulator." White, supra note 1, at 350.
41. A further complication of disclosure questions has to do with the scoring a teacher assigns to an agreement secured by less than full disclosure. If a student committed fraud in some detectable way to secure his outcome, then any effort to simulate the real world would suggest that his score should be reduced to reflect the agreement's being rescinded or reformed. But legal ethics and the common law of fraud currently permit a considerable degree of deception, and distinguishing permitted deception from prohibited deception is troublingly difficult.
42. See Chris Argyris et al., Action Science 80-102 (San Francisco, 1985) ; Michael Moffltt & Scott Peppet, Action Science and Negotiation, 87 Marq. L. Rev. 649 (2004).
43. See Chris Argyris et al., Action Science 80-102 (San Francisco, 1985) ; Michael Moffltt & Scott Peppet, Action Science and Negotiation, 87 Marq. L. Rev. 649 (2004).
44. To the dismay of many negotiation students, no silver bullets of negotiation strategy exist. Some behaviors tend to produce more favorable results than others, but sometimes one may do everything right and not persuade the other side. Similarly, one may occasionally stumble clumsily into an extraordinarily favorable deal.
45. A fourth potential shortcoming depends on the frequency of evaluation. If a teacher evaluates only one student performance, at the end of the course, her assessment system provides no feedback that would allow students to change their behavior. On the other hand, if she evaluates every student performance, students' freedom to experiment appropriately may be inhibited.
46. The number of actions that fall into this category is extraordinarily low. Beyond, perhaps, conduct prohibited by the common law or by ethical constraints, what is universally, uncontextually "bad" negotiating behavior? Pounding one's shoe on a podium to make a point? Casting public personal insults at one's counterpart? Irrevocably precommitting to an extreme position? Avast body of behavior admittedly carries high risk, but negotiation advice that begins with "always" or "never" tends to be shallow and/or highly suspect.
47. The text perhaps most misread as including universal prescriptions is Getting to Yes. The authors make their best case for the "principled negotiation" approach-"focus on interests, not on positions," "separate the people from the problem," etc. But they dismiss the universal application of these principles, recognizing that in some situations other approaches may yield more satisfactory results. See Fisher et al., supra note 21.
48. The five performance criteria are negotiation planning, flexibility in deviating from plans or adapting strategy, teamwork, relationship between the negotiating teams, and negotiating ethics. In assessing outcomes, judges are directed to consider seven separate factors. See The American Bar Association Law Student Division, Rules and Standards for Judging (2002-2003). The seven outcome-assessment factors are drawn from Roger Fisher & Danny Ertel, Getting Ready to Negotiate (NewYork, 1995). While the ABA asserts that the standards are "based on the premise that there is no one 'correct' approach to effective negotiation in all circumstances," the categories of considerations clearly reward student negotiators who adopt an integrative, problem-solving orientation.
49. See, e.g., Allan Collins et al., Cognitive Apprenticeship, in Knowing, Learning, and Instruction, ed. Lauren B. Resnick, 480-83 (Champaign, 1989); Hergenhahn, supra note 3, at 408.
50. See, e.g., Allan Collins et al., Cognitive Apprenticeship, in Knowing, Learning, and Instruction, ed. Lauren B. Resnick, 480-83 (Champaign, 1989); Hergenhahn, supra note 3, at 408.
51. This assertion may be descriptively inaccurate and/or normatively disappointing. I can speak only from the perspective of a yet-untenured junior faculty member. I have the strong impression, however, that if I were to spend all of my professional time grading my negotiation courses, my tenure-free status would persist in frustrating ways. Nothing I have seen among senior faculty suggests that the calculus changes later in one's career. Put simply, there are only so many hours in the day for instruction. Any teaching and grading method must recognize these constraints.
52. Because I have sufficient technical resources, I could choose to videotape all of my students' negotiations. My students know this, so they cannot be certain whether they are likely to be selected for videotaping in any given exercise.
53. I regularly conduct review sessions with my students after I've turned in their grades as a means of learning about my instructional methods. Not surprisingly, students almost universally report that the prospect of being videotaped increases their incentive to arrive in class fully prepared to negotiate each day. My concern in adopting this method was that I might be introducing unhelpful anxiety into the students' learning experience, but to my surprise students have consistently praised the effects of this pressure to prepare.
54. I was initially nervous about making such an offer, fearful that I would spend all of my waking moments watching videotaped negotiations with my students. But students' demands for additional personalized feedback have been manageably modest. Recently I have begun to experiment successfully with the use of teaching assistants in the video-review process.
55. Mary Holmes & Judith Maxwell, The Use of Role Play and Video in Teaching Communication Skills to Law Students, 1 J. Prof. Legal Educ. 151, 157 (1983).
56. There are at least three possible ways to explain why students may not articulate calibrated analyses of themselves on videotape. First, many students simply lack the tools, frameworks, or ability to observe well. Negotiation courses can offer a tremendous amount to these students. Second, some students may see dynamics in a balanced way, but may choose to articulate only one aspect of what they observe. For example, one student may voice only her negative observations because she is fearful that she will otherwise sound defensive or arrogant, while another student may voice only positive observations, out of concern that the group will judge her to be incompetent if her performance is less than perfect. Finally, some students have profound psychological issues that make balanced self-observation all but impossible. Given that law students tend to be in their twenties, a. time when certain psychological disorders tend to manifest themselves, all law teachers should be aware of some of the relevant warning signs. Those (like negotiation teachers) who encourage personalized experiences such as role-playing and self-observation should be particularly aware.
57. For a very useful summary of one method of incorporating videotaped negotiation simulations into negotiation instruction, see Peppet, supra note 24. See also Charles Steinmetz, The Effect of Videotape Feedback on the Development of Presentation Skills, 11J. Police Sei. & Admin. 343 (1983); Greg Kearsley, Training Media and Technology, in Training for Performance: Principles of Applied Human Learning, ed. John E. Morrison, 233-37 (New York, 1991).
58. For a very useful summary of one method of incorporating videotaped negotiation simulations into negotiation instruction, see Peppet, supra note 24. See also Charles Steinmetz, The Effect of Videotape Feedback on the Development of Presentation Skills, 11J. Police Sei. & Admin. 343 (1983); Greg Kearsley, Training Media and Technology, in Training for Performance: Principles of Applied Human Learning, ed. John E. Morrison, 233-37 (New York, 1991).
59. For a very useful summary of one method of incorporating videotaped negotiation simulations into negotiation instruction, see Peppet, supmnote 24. See also Charles Steinmetz, The Effect of Videotape Feedback on the Development of Presentation Skills, 11J. Police Sei. & Admin. 343 (1983); Greg Kearsley, Training Media and Technology, in Training for Performance: Principles of Applied Human Learning, ed. John E. Morrison, 233-37 (New York, 1991).
60. While one might reasonably include a genuinely multiparty negotiation at the close of the course, I judge that the additional complexities involved in additional parties become quickly too overwhelming to form a useful basis for the analysis I am asking of my negotiation students.
61. For schools with the capacity to tape only one negotiation at a time, the logistics are still not terribly complicated. A time slot can contain only as many negotiation groups as the school can tape at once. Even if that number is one, a work-week of regular work-hours offers at least twenty time slots for only six groups.
62. The grading of preparation materials is, of course, not technically part of the student-analyzed videotape process. As I suggest in section III below, I believe that multiple assessment measures are the most effective and appropriate way to grade negotiation students.
63. Streaming involves a method of delivering digital video files without requiring the user to download the entire file before she can begin viewing. Once a portion of the file is downloaded into a buffer, the video can begin to play. While it is playing, the remainder of the file is downloaded. This format makes viewing video files easier and more efficient.
64. As described below, each taped negotiation is viewed by eight students. If there is only one tape, the coordination problems among the eight students become considerable.
65. A fast Internet connection remains important, even when using streaming video. Fortunately such connections are becoming increasingly available to students. Not all commercial Web sites, including specialized teaching Web sites, will permit the posting of these video files because the files are quite large. For example, Web sites for The Westlaw Education Network (TWEN) and for the Lexis-Nexis Web Courses currently both have file-size limits too small for posting streaming video files. To avoid these problems I post the files directly to a password-protected area of my faculty Web site.
66. Because students' self-analysis is not based only on their memories, these self-observations differ from the reflective journals described in section I.E. above.
67. A feminist critique of traditional negotiation simulations is that they tend to reduce the complexity of negotiation situations-often omitting the relational and nonrational aspects of the situation. Even beyond the generalized critique of simulations' brevity, "behavior observed and interpreted in isolation will produce very different findings from that which is examined in light of the context in which it occurs." Elaine M. Landry & Anna Donnellon, Teaching Negotiation with a Feminist Perspective, in Teaching Negotiation, supra note 12, at 111, 113.
68. It is common for students' assessments of their own performances to shift once they see themselves on videotape. In many cases their assessments will become slightly less positive, and slightly more consistent with outsiders' observations, if they have access to videotape. Stated differently, students who do not have access to videotapes of their performances tend to report more favorably on their performances than outsiders would. The process of seeing one's own performance on tape has been described as "self-confrontation, " suggesting that the tape may present information the viewer would not expect (or welcome). See, e.g., Roger D. Martin, Videotape Self-Confrontation in Human Relations Training, 18 J. Counseling Psychol. 341 (1971).
69. While performance on tape often reflects a student's degree of preparation, awareness, and skill, some of the highest-scoring self-assessments have been thoughtful, reflective critiques of performances that included a significant shortcoming. We have all said some things less well than we might have wanted. The most talented and aware among us recognize those moments quickly and both adapt short-term behavior and assess the underlying causes of the difficulties.
70. I do not base a student's entire grade on the student-analyzed videotapes. In section III I describe other factors I include in the final grades.
71. Some evidence suggests that students are more accurate with videotape observations and assessments when they have adopted a fictional persona during a role-play than when they have been playing themselves. Stated differently, students viewing themselves on videotape when they have not been instructed to assume a persona other than their own may be less effective at accurate self-observation than those with assigned roles. See David A. Kipper, The Differential Effect of Role-Playing Conditions on the Accuracy of Self-Evaluation, 45 J. Group Psychotherapy, Psychodrama & Sociometry 257 (1977). Even if a student's observations are not entirely accurate, the process of observing is filled with potential benefit.
72. Even if the multiple evaluative mechanisms do not create too great a workload, students who operate under many methods of assessment may suffer from evaluation fatigue. In a sense, being graded all of the time, for everything one does, causes the fact of evaluation to lose much of its importance and impact. If every word out of my mouth or my pen counts for a tiny fraction of my grade, at some point - in addition to being annoyed - I will stop noticing or caring about the tiny marginal differences in evaluation.
73. Any of my former students who read this section may find a certain irony here. In each of the three schools where I have taught negotiation, at least a few students have complained that my course demands greater work than the course credits suggest. I am not entirely convinced that they were wrong, but I have not abandoned the use of multiple evaluative mechanisms.
74. I am hardly alone among negotiation teachers in including a subjective assessment of students' performances as part of their final grade.
75. A few times during the semester, after a simulated negotiation and before in-class review of the experience, I have each student write a memorandum to his client explaining the outcome he achieved and outlining the next steps. The students receive a grade based on the content of the memos rather than the content of the deal they struck. Awful deals are difficult to describe and defend to a client, of course, just as excellent deals are easier to explain. Nevertheless, I consistently receive some model memoranda from students who achieved only moderately successful deals, and I receive some surprisingly disappointing memos from students who achieved good deals. My observation has been that these memoranda test and reward students' attention to attorney-client relationships and clients' interests more than any other aspect of the course. For that reason, and others, I favor their use as part of a grading system.