“IF YOU KNOW WHY, YOU WILL FIND HOW” TO TECHNOLOGY
Benjamin G. Davis¹
Texas Wesleyan University

I see students as being “apprenticed to me” and my role is to help them turn into master artisans in each subject I teach. In reaction to most of my personal law school student experience and possibly because so many of my students are older, I try to reduce hierarchy and intimidation by me (learning the subject is hard enough on its own). I want them to be fearless. I imagine law school as a series of personal relationships - student by student. I want them to feel I am accessible.

I. Making the classroom work

I teach Contracts (6 hours full year - 84 students), the Dispute Resolution survey course (3 hours, one semester, 39 students), and Arbitration (3 hours, one semester, 12 students). At the beginning of each class I ask each student to send me a note answering why they came to law school and what they want to do after law school, so that I have a better sense of each of them. In each course, fifteen percent of a student’s grade is what s/he says in the classroom. Thus, there is a built in benefit to speaking in class - the student can influence part of the grade through their efforts before the exam. Giving that background pressure/opportunity goes hand in hand with my preference to ask for volunteers. I prefer students to try when they feel they can put their best foot forward. However, I call on students “cold” on occasion as I understand that some students respond primarily to fear. In Contracts, I use casebooks that contain problems and have the students work through the problems in class and through at least two written assignments a semester. While the written assignments are ungraded, each student is given a personal memo about their submission. In Dispute Resolution and Arbitration, I conduct in class role plays and exercises and have debriefing sessions.

A significant use of technology is to provide accessibility. Notwithstanding office hours or the minutes before or after classes, it is difficult to connect with 130 students. With service and research I am in and out of my office. I rarely am reachable by telephone. So e-mail is the primary other means of responding to student questions and concerns. These e-mails do not count towards the student’s class participation. They tend to be a means for a student to verify whether they understand a point and share epiphanies with me. They are an extension of the before/after class dialogue. These e-mails are not a vehicle for sending in written assignments (except when there are emergencies) because it is simpler. The problem is due, the assignment was handed in. I also give my feedback on the written assignment by placing the response in the student’s box.

In each course, I create a TWEN site that I use to post assignments and the syllabus as well as send blast e-mails in emergencies. I do not have a discussion forum because (1) I have enough difficulty monitoring the professional one that I have (www.yahoogroups.com/ICArbitration) (2) am not sure I want to have an official unmonitored discussion forum and (3) I want the focus of discussion to be during the class where a student can affect their grade.

For grading, I use an Excel program to list all students in a column and each class in a row. After each class, I write in a summary of a student’s comment and my evaluation. (I take brief notes in class to jog my memory - I destroy the notes after I enter the information so I have no chance to second guess what I have put down.) For example, “Jane Doe - Opened Hamer v/ Sidway - excellent”. At the end of the term, I look at each of these comments to determine quantity and quality and the class participation portion of each student’s grade.

II. Preparing the Student for the future in Dispute Resolution and Arbitration

Beyond the technology of making the classroom work, technology is a vital part of the class subject matter in Dispute Resolution and Arbitration. I consider it malpractice today for a Dispute Resolution or Arbitration professor not to address this subject matter in some manner in the course and with regard to both online and offline generated disputes. I also think it should be thought about in many other courses as Online Dispute Resolution touches on constitutional, administrative, contract, intellectual property, consumer protection, arbitration, dispute resolution, civil procedure, private international, public international, anti-trust, secured transactions, and privacy law in the domestic, international and transnational arenas. It also affects issues such as access to justice, privatization of law, globalization and development.

I was fortunate to begin working on the use of information technology and dispute resolution in 1989 when I led the introduction of information technology (custom software design and implementation in four languages) and internet strategy at the International Court of Arbitration of the International Chamber of Commerce in Paris, France (arbitrations and conciliations on six continents). As the internet has grown, and particularly since 1999, a number of websites (currently estimated at around sixty) provide for some type of online dispute resolution (negotiation, mediation or arbitration services, but also online courts) and conflict management services. These services fall in the general categories of complaint handling, negotiation, mediation, and arbitration.

Several professors have been intrigued by this new use of technology in dispute resolution. Over the past year, either in stand-alone ADR and Technology seminars (winter term, or even one week courses, in class or through distance learning) or as part of survey Dispute Resolution courses, the professors have attempted to introduce students to these technologies. My concern about stand-alone ADR and Technology seminars or short courses is that they might be selected only by technophiles. I feel it is urgent for the average law student taking a survey Dispute Resolution course to have some grounding in this subject. Thus, as part of learning about negotiation, students conduct an online negotiation in my Dispute Resolution courses - and in similar fashion they conduct online mediations or can visit and examine online arbitration sites. Students are divided into negotiation, mediation, or arbitration groups, trained briefly, and then asked to proceed. I wander around and watch their experience and also look at all students while they work through any computer. The next class we debrief on the experience as compared to offline exercises.

To gain access to the technology, I contact service providers and ask them to let us borrow their platform. Some are open, others are reticent. In exchange for the courtesy use, I send a note to the dispute resolution service provider in which I provide comments about the manner in which their platform worked. I discourage service providers from using our participation in any marketing effort.

III. Preparing part of the future of Dispute Resolution - The idea

Several professors have concluded that exposure to these technologies will permit law students to be better lawyers - whether in representing clients or acting as neutrals. An informal group² has formed to move past the individual efforts at several universities and prepare a new international initiative in the areas of legal education, conflict management, and ODR. Taking inspiration from longstanding arbitration / mediation / negotiation moot court competitions between law students a consortium of law school faculty and interested professionals have designed and are implementing a prototype online negotiation competition. Sponsored by Texas Wesleyan University School of Law during CITDR’s Cyberweek 2002 (February 2002), ten teams, drawn from law schools in Australia, Canada, New Zealand and the U.S., will engage in two rounds of head to head competitive negotiations in an ODR environment.

We envision this as the first of many iterations, with future competitions involving more teams, different dispute resolution techniques, languages other than English, and a pool of ODR services and products. The goal of the international competition is to help law students around the world become better lawyers by developing their skills and understanding of the theory and practice of ADR and ODR.

¹ Associate Professor, Texas Wesleyan University School of Law, Fort Worth, Texas. Bdavis@law.txwes.edu I have no financial or other interests in any dispute resolution service provider whether online or offline.
2 Alan Gaitenby (Assistant Director, Center for Information Technology and Dispute Resolution (“CITDR”), University of Massachusetts - gaitenby@disputes.net), Ayesha Hassan (Senior Policy Manager, E-Business, IT and Telecoms, International Chamber of Commerce - ayesha.hassan@iccwbo.org), Ethan Katsh (Professor and Director, Center for Information Technology and Dispute Resolution, University of Massachusetts - katsh@legal.umass.edu), David Larson (Professor and Senior Fellow Dispute Resolution Institute, Hamline School of Law - dlarson@gw.hamline.edu), and Frank Snyder (Associate Professor, Texas Wesleyan University - fsnyder@law.txwes.edu) and the author.