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Problem-Solving Through Reflective Practice: The Oxygen of Expertise or Just Swamp Gas?
Caroline Maughan*
Senior LecturerFaculty of Law
University of the West of England, Bristol
< c-maughan@uwe.ac.uk>
Copyright © 1996 Caroline Maughan.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press
Ltd.
*With thanks to Mike Maughan and Julian Webb for their help and advice in the preparation of this article.
Summary
Contents
Introduction
In recent years there has been an increased interest in the nature of legal problem-solving and the development of strategies through which it can be taught (Nathanson, 1989; Cruickshank, 1996). One link between legal problem-solving and learning theory that remains under- developed is the role of 'reflective practice'. In this paper the significance of reflective practice as a means of developing expert problem solvers will be explored.Although the concept of reflective practice is becoming a major theme in debates about both academic and professional legal education, it is important that we do not lose sight of the fact that the 'reflective practitioner' is a Weberian ideal type. There remains much uncertainty about how a 'real' reflective practitioner thinks and acts, and consequently about how this being might be created. The focus will be an aspect of educational development for reflective practice which the author has found especially challenging: by what processes does the novice practitioner move towards expertise, and how can we develop these processes? In so doing the author will draw on her experience of facilitating a 'lawyering skills and legal process' course for undergraduates at the University of the West of England (1) (see Maughan and Webb 1995). Although the practical focus of the paper is therefore on 'academic' (2) legal education, it is suggested that the experience is relevant to the whole question of professional development.
The principles underlying the clinical dimensions of the programme can be stated as follows:
(a) that professional expertise is developed through processes of reflective practice.(b) the development of reflective practice capability at the undergraduate level will enable those students who subsequently practise law to become proficient and effective practitioners more rapidly and more confidently.
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What is a Reflective Practitioner?
It is easy to reduce the reflective practitioner to an image of someone who is simply thoughtful about their own practices. In fact the notion of reflective practice describes a completely different way of thinking about professional knowledge and professional education from the traditional one. It is about creating a different kind of knowledge from the rule-based knowledge which is created and transmitted in law schools. It therefore involves a challenge to both the skills/knowledge and academic/vocational divides.The reflective practitioner constructs professional knowledge through integrating her rule- based knowledge with 'know-how', which derives from a range of personalised skills, strategies and values developed through experience. It is not, therefore, something that can be acquired through a 'technical-rational' (Schön 1983, 1987) education. This is an education which is grounded in rule-based knowledge and which lacks the element of experience necessary to enable the individual both to live through their propositional knowledge and to develop the heuristics needed to deal with the unpredictability of real world problems.
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Creating the Reflective Practitioner
To date the most influential writer on education for reflective practice is Donald Schön (1983, 1987). Schön's approach, it has been said, requires:
"diagnosis, testing and belief in personal causation. Diagnosis is the ability to frame or 'make sense of' a problem through use of professional knowledge, past experience, the uniqueness of the setting and people involved, and expectations held by others. Once framed, the reflective practitioner engages in on-the-spot experimentation and reflection to test alternative solutions. Finally, the courage to act in situations of uncertainty...requires that the practitioner accept responsibility for action." (Kirby and Paradise 1992: 70)
Schön draws a fundamental distinction between two reflective processes: reflection on action and reflection in action. Reflection on action describes the process of reflection which takes place after the event where the practitioner makes explicit and evaluates the theories of action used to solve a problem. Reflection in action describes interaction with a 'live' problem as it unfolds. The capacity to reflect in action assumes that the problem-solver has the capacity to surface their 'knowing in action', that is, the hidden or tacit knowledge which we use to deal with particular tasks. Where a problem does not create a sense of uncertainty or surprise we will tend to deal with it spontaneously on the basis of that tacit knowledge. However, where a problem contains an element of uncertainty or value conflict, Schön suggests we must consciously confront our tacit theories of action and their underlying values in order to reframe the problem and make it capable of resolution. Schön calls this process 'the reflective conversation'.
The essence of Schön's model of professional education is the creation of an environment in which students can confront simulated or live problems and engage reflexively with them.
This he calls the 'reflective practicum.' It is a safe environment in which students put their rule-based knowledge into action and develop a repertoire of responses and judgements which become progressively more complex and sophisticated as they develop to cover a wider and wider range of experiences.
The concept of reflection in action is one of the cornerstones of Schön's theory. It is this process which integrates theory, intuition and action in situations of uncertainty. It is understandable, therefore, that it is reflection in action which has been the principal focus of analysis and critique.(3)
Jones (1996) sees it as one of the major criticisms of Schön's work that it derives a model of professional education from his own analysis of expert narratives, i.e. that it seeks to build a system of developing novices from an expert perspective on problem-framing and problem- solving. It is open to debate whether the exemplar of the expert is appropriate for developing the capability of the novice.
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Problem- Solving: Novice and Expert Approaches
Studies of the cognitive processes involved in problem-solving provide a valuable starting point to an analysis of the role of reflection. Problem-solving, it has been said, is determined both by the situations (or 'task-conditions') in which the professional must think (Hammond 1978, 1981; Hamm 1988) and by the professional's level of expertise (Dreyfus & Dreyfus 1986; Schmidt et al 1990). Studies of variations in task-conditions suggest that the form of thinking adopted will differ according to whether a problem presents itself in a form that is well-defined or ill-defined, both in terms of what is presented and how it is presented. Well-defined problems are generally resolvable by analytical, or 'technical rational' problem- solving, whereas ill-defined, or 'swamp' problems in Schön's terms, require a form of reasoning that is far more intuitive. The Dreyfuses' work, on the other hand, suggests that it is more the professional's level of expertise which will determine the nature of problem-solving. In essence, they argue, experts are necessarily intuitive: it is a defining characteristic of their expertise. Novices, by contrast, use far more analytical forms of reasoning. More recent research similarly stresses the importance of heuristics in the development of expertise. A study of medical problem solving by Schmidt et al (1990) identifies a temporal shift from technical rational - in this context pathophysiological -'scripting' of problems amongst newer trainees to an increasingly intuitive "idiosyncratic experience-based knowledge" (ibid, p 618) scripting of problems by experienced practitioners.Despite their obvious differences, both the 'cognitive continuum' model of Hammond and others, and the experiential model of the Dreyfuses, place significant doubts on (1) the idea first advanced by Newell & Simon (1972) that all problem-solving is grounded in analytical reasoning, and (2) that performance is closely related to the availability of content-based knowledge, so that expert problem-solvers are 'expert' because they have a substantial body of propositional knowledge to apply to problems (Elstein et al 1978).
Hammond's work suggests that Schön's distinction between high ground and swamp is a valid one, and that swampy situations require intuitive processing. But this research says little about novices' capacity to deal with the swamp.
Jones (1996) and Eraut (1994) make the point that the Dreyfuses' work suggests that novices may encounter major difficulties when they first experience professional work. From this a concern arises about whether reflection in action is an over-ambitious process for developing the novice.
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What is a Novice?
Jones cites the work of Dreyfus and Dreyfus in analysing the defining characteristics of the novice. The novice is someone who
"...applies rules and plans rigidly, who has little situational understanding, and who has no judgement of a situation...."
This contrasts with their description of the expert, who
"...no longer relies on rules, who has an intuitive grasp of situations based on deep tacit understanding, and who has a vision of the whole...." (Jones 1996)
But how valuable is this contrast in the real context of learning?
The Legal Process Course at UWE provides a particular focus on what is meant when reference is made to the 'novice'. Novices are undergraduates in their second and third year of a law degree. They have all opted to take the course. Most have no experience of any kind of legal practice, though a small minority work casually as paralegals. The course attracts a number of mature students who bring experience of other professional and occupational activities with them.
Thus the notion of the 'novice' is not clear cut. There are those students who have little knowledge of substantive law and have little or no experience or knowledge of the professions. There are those who have valuable practical experience of the law in operation, and there are those who bring with them a wealth of knowledge and experience from other backgrounds, and who are able to transfer the value of that experience into a legal context. There are, indeed, those who would be regarded as experts in another field.
The above would suggest that any group of 'novices' is not homogeneous. There are many things which distinguish them one from another.
What unites the Legal Process group at UWE is that they are all studying academic law, and that none of them have yet begun their vocational training. Do these factors preclude them from developing the skills and processes of reflective practice?
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The Novice in the Swamp
The main issue arising from the above discussion is the degree to which novices operate effectively in conditions of uncertainty and unpredictability. (I will continue to refer to 'novices' in spite of the misgivings about the term outlined above.) The work of the Dreyfus brothers would have us believe that they do not, or are unable to.While it is accepted that the novice is subject to a greater degree of uncertainty than the expert, the latter is likely to be sure of the substantive legal aspects of her work. Her experience will give her much more confidence to take action in the contexts in which she finds herself. She has very likely had time to reflect on and clarify her personal values and integrate these with the ethical requirements of her profession. The novice has none of these advantages. What is completely routine and run of the mill to an expert can give rise to uncertainty and anxiety for the novice.
Research suggests that novices actually store substantive knowledge differently from experts. Jill Larkin (1979), for example, in her work on how students solve textbook physics problems shows that while novices solve problems by retrieving isolated blocks of information serially from long-term memory, experts retrieve information much more conceptually; in clusters of equations, for example. This would seem to indicate that access to substantive knowledge is much more problem-driven in experts.
What arises from the UWE course is the possibility that the technical rational approach, both to the teaching of substantive law and to the teaching of skills, may indeed be a barrier to developing expertise if it is not accompanied by an encouragement to reflect in and on the learning that takes place. The law may have been learned only at a surface level. Students frequently lack a deep, contextual understanding of the legal rules because they are taught in an environment remote from experience. They cannot easily make sense of that knowledge in the context of their own individual life worlds. This lack of confidence and understanding is revealed through a 'check list' approach some students take to activities such as client interviewing and negotiation. Checklisting signifies a desire to over plan and a rigid, structured preparation. Students are essentially attempting to ensure control over an otherwise open-ended situation. The following illustration is taken from an assessed interview (from Maughan 1996):
Lawyer and client are discussing the client's house sale.Client: (Near start of interview) I'm really worried that Mr Crabbe ( the buyer) might convert the house into a bail hostel. I don't think my neighbours would want that. Can I stop him?
Lawyer: We'll come back to that. Did you say you had put the property with an estate agent?
Client: I really need to know this before I decide if I want accept his offer.
Lawyer: Just let me get some other details first. Who's your estate agent?
Anxieties about giving legal advice, and a mechanistic approach to interviewing, have combined to prevent this student from listening to the concerns of her client.
In this case the interviewer's tacit interpersonal knowledge about how to converse with someone else and to respond with appropriate questions has been interfered with by her lack of confidence in using her rule-based knowledge, which is not yet adequately personalised.
The student in such a case would be invited to give feedback on her performance and encouraged to reflect on the theories of action in play during this interaction. Ideally she will consider the underlying theory she used which said that her checklist overrode the need to listen and respond to her client. She will hopefully recognise why this approach is likely to lead to an unsatisfactory outcome. This will enable her in a subsequent interaction to be aware of what she is doing, and perhaps to modify her behaviour as the interaction unfolds.
The danger is that the emphasis on, and the perceived prestige of, a technical rational approach to professional practice will seriously impede other, non-legal, theories of action which are nevertheless needed in order to bring about a satisfactory solution to the problem.
Mary Tuck (ACLEC 1995, p 17) makes the same point:
"Even when learning skills at the vocational stage, it was difficult for students to get beyond handling facts and procedures to the point of dealing with other parties, whether a client or otherwise, whose responses would be unpredictable."
The key feature of reflection in action is that it enables the practitioner to surface implicit theories of action as a situation unfolds. The novice, as well as the expert, is working from theories of action. There may be fewer of them, or they may be less developed and complex, and they will certainly be based on a smaller repertoire of experiences, but they nevertheless are determinants of how that person will behave. Work in the cognitive domain suggests that novices rely on far more naive representations of problems. They focus on the superficial characteristics of the problem and draw on everyday concepts and experience, rather than on the specialized knowledge utilised by experts (Chi et al 1981; Larkin 1983). Understanding that they are using a theory of the situation which determines how they will act to resolve the situation is in itself a useful developmental experience for the novice, hopefully enabling her to move beyond these naive representations. The subsequent awareness that alternative theories may be brought into play which may provide a more appropriate outcome for a given situation would seem to be self evidently valuable. The development of this awareness is a strength of programmes which develop reflection in action.
None of this is to say that technical rationality has no part to play in the development of professional expertise. It does however serve as a reminder that technical rationality is only part of a complex web of processes and theories of action which enable students to become aware of the swamp and increase their confidence to operate in it.
Where technical rationality has an important part to play for the novice is in helping her to categorise and explain the world of the practising lawyer. The rules and procedures learned in the law school, as well as the discourse of legal problem solving, is an indispensable starting point. But it is only a starting point. It enables a novice to 'see' issues with a lawyer's eye. It is not, however, a complete toolkit, the application of which to any given problem will bring about a satisfactory outcome.
Postponing the encouragement and development of reflection in action is doubly problematic. Firstly, we have seen that the novice has as great a need as the expert for those processes which help the building of a repertoire of exemplars of effective behaviour. Reflection on action without subsequent reflection in action (in a new situation) seems not to make any sense. The capacity to articulate and consider what happened, why it happened, what implicit theories were at work which required one course of action rather than another is of crucial importance. But if that reflection is not followed by the ability to surface and select from the repertoire during a subsequent interaction, it is effort wasted. Reflection in and reflection on action constitute an axis of effective development. You cannot have one without the other.
Secondly, there is the notion of the 'masterclass' approach. Those who would deny novices the benefit of reflective development would restrict it to experienced, competent practitioners. The analogy is with a masterclass in music. The expert/mentor deals only with the artistic refinements to a technically adept performance. Implicit in this idea is that it is possible to become technically adept without any of those reflective skills which enable development from the competent to the highly proficient. The author would take issue with this. The need to make sophisticated judgements about the requirements of a given situation are just as present in the work of the novice as they are in that of the expert.
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The Nature of the Swamp
Mention has been made of the unpredictable nature of professional work, even at the level of the novice. To understand the nature of this unpredictability is to begin to see the inadequacy of a purely technical-rational approach to professional education.Clients present themselves with problems which are unique to them. They may or may not be clearly defined as problems. In any event, the professional has to go through a complex process of negotiation, consultation, decision-making and discussion before the outcome that is best for that client in that context is arrived at. Probably only a part of this process is to do with the law itself. A number of other issues may well arise to affect the way any particular case is dealt with.
First, any professional work is premised on the ethical behaviour of the professional practitioner. Equally, the practitioner is not simply the unquestioning follower of the professional codes of conduct. She will have her own set of values which may from time to time come into conflict with the requirements of professional life. How she deals with these conflicts is part of her professional make-up.
Second, different clients need the lawyer to take on different roles. While one client may be articulate and assertive, and require the lawyer to be a professional advisor, another may want a counsellor, while another may expect her to take complete charge of the case. Exercising judgment about what role is appropriate is part of her expertise.
Third, the lawyer is expected to work with peers, colleagues from other professions and a variety of lay people in addition to her clients. Again this demands a sensitivity to the varying expectations of these others.
Fourth, all lawyers have to work within economic constraints. Those in private practice have also to be aware of the commercial imperatives of their work. This has implications for what work is done, the quantity of work taken on, the time available to deal effectively with cases, etc.
Fifth, the lawyer has consequently to be personally well organised to handle these pressures.
Lastly, she has to operate in a particular organisational culture. Therefore she has to understand the micro-political issues which exercise the organisation as well as the influencing processes that enable her to have a voice in the organisation's decision making mechanisms.
Most of the above points are not addressed by the more technical rational approach to learning the work of the lawyer. Yet they are all factors which may come into play when trying to perform professionally and effectively. For every interaction with a client, there are a number of stakeholders who need to be considered. The ability to be sensitive to this is part of professional expertise.
Moreover, these swampy issues are not confined to the legal professional world; rather, they involve skills and processes which we need to develop in order to fulfil our various roles in society, be it within the family, the school, work or university. In other words, we need them for our personal as well as our professional development. It therefore follows that every member of the group of UWE 'novices' will bring to the programme some measure of experience or expertise in dealing with these problems.
The purpose of a reflective practicum in legal practice, therefore should surely be (at least in part) to encourage learners to transfer the reflective skills and processes they have acquired in these other contexts to the legal context. It should help them to personalise the content knowledge of law so that they begin the process of making that knowledge part of their tacit knowledge.
The evidence from the Legal Process course that has been running now for almost five years, is that, with guidance, students can manage this transfer. This provides some justification for the belief that the development of reflective skills and processes will subsequently be transferred into professional practice.
Although a Legal Process programme like that at UWE may not be able to replicate all the swampy issues discussed, it can certainly address some of them. It can also present the learners with surprise and uncertainty so that they are not sure whether they are looking at a problem which comes under a particular head of law, or even any head of law.
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Developing the Habit of Reflection in Action
From what has been said it should be clear that the kind of reflection to be encouraged is broader and deeper than that often found in the competence-based performance/feedback approach of skills courses. The experience at UWE over five years indicates that reflective learning is more likely to be encouraged if the learning theory and objectives are discussed with the group at the beginning of the course (Maughan and Webb 1995: chs 1, 2; and see Maughan and Webb 1996).It is worth pointing out that it has taken us some time to surface and clarify our own action theories. They are still being revised! Currently, the course begins by asking the group to reflect critically on their experiences as law students and from there to broaden their analysis to consider the separation of theory and practice in traditional legal education; the nature of legal professional knowledge; and their perceptions of the role of the lawyer in society. This provides a framework within which to introduce and discuss the concept of the reflective practitioner.
Up to this point, the approach is technical-rational. The students are asked to think about how they, and others, might react in various swampy situations. This approach is used because it has been observed that students tend to feel more comfortable with a learning environment and method they are used to. The familiar lecture/seminar method tends to develop and reinforce those learning styles and preferences which are associated with technical rationality, namely 'converger/assimilator' styles (Kolb 1984), also known as 'theorist/reflector' styles (Honey and Mumford 1992). Learners with these styles like to carry out methodical and detached analysis of concepts, rules, systems. They may feel uncomfortable with open- ended, experiential learning activities, distrust intuition and question the value of 'letting it all hang out.'(4)
When these learners first enter an unfamiliar learning environment, some feel anxious and threatened. It is made clear that everyone will be expected to participate. All general discussion takes place 'in the round'. There are no desks or tables between them and staff, and thus nowhere to hide. There will be a number of people in the group they do not know. All these factors, together with some intellectually challenging subject-matter, are sufficient shock for the first week.
The approach changes, however, in week two. The group is introduced to Schön's concepts of reflection in action and reflection on action by placing each individual in a swampy situation and asking them to work through their reflective conversations to try to identify the reasoning processes they used when confronted with something unexpected. The exercise also provides a useful introduction to experiential learning theory. This is the basis on which it is hoped to create the conditions for reflective learning.
It is only fairly recently that the decision to make the learning theory explicit was taken. This was done because, on the whole, there was dissatisfaction with the quality of reflection demonstrated by the students. It was thought this might be linked to a failure to articulate and clarify the course objectives adequately. The group could not be expected to engage in deep reflection if they were not clear about why they were doing it and how it helped them to learn. Through experiential exercises they are encouraged to make the link between the experiential learning cycle (Kolb 1984) and Schön's model of reflection and to use these processes to identify their strengths and weaknesses as learners and then use their new experiences to modify and refine their action theories. They are asked them to record these processes in a learning journal.
This two-week excursion into learning theory has been effective in the sense that the 'novices' quickly come to a deeper awareness of how they learn and to feel much more in control of their learning. They appear to have become more confident and flexible learners by the end of the course. What is less clear is the extent to which they have developed the capacity for reflective practice. Other strategies are used throughout the course which are aimed at developing this capacity.
Reflection in action involves uncovering processes of discrepant reasoning. This occurs when our action theories are in conflict so that we act inconsistently with our professed beliefs and values (Schön 1987, Argyris 1989). It can easily happen in situations of unpredictability and value conflict. Those theories underlying our behaviour in the situation are usually tacit, and failure to confront and challenge them may lead to a rationalisation of intuitive action after the event in which an unsatisfactory outcome is attributed to some external cause. Argyris and Schön call this process distancing. For example, when asked to say why she had spent twenty five minutes going round in circles in an attempt to reach an agreement, a negotiator might put it down to lack of time, rather than reflecting on the use she and her opponent made of the time available.
One way in which novices are encouraged to begin to develop awareness of these discrepant reasoning processes is to construct exercises which specifically highlight them. An attempt is made to construct a situation in which the discrepancy will be so self-evident by the end of the exercise that no one will fail to spot it. This should enable each individual to understand how the processes of discrepant reasoning work, and to this extent it is usually successful. However, it does not necessarily mean that in future situations they will be able to recognise and articulate their own discrepancies. It is therefore essential, as with all experiential activities, to design techniques of feedback which seek as far as possible to elicit the student's reflection in action (See Maughan 1996).
Furthermore, the feedback process should be made as painless as possible. Confronting and challenging deeply held values and beliefs can be disturbing, even threatening, and all the more so if it is done in public.
This is why the learning journal can be an effective device for novices to surface and review their personal theories. A student can record here things she would prefer not to reveal in oral feedback within the group. Moreover, the process of deep reflection can take a long time. For example, a student may need to review a performance on video a number of times before she gets a clue as to what led her to frame a problem in a particular way. If she is in the habit of keeping a journal, it can provide a blueprint of this lengthy reflective process on which to base future action.
Over the five year period that this programme has been running the author has become convinced that the reflective approach to developing students at this stage is extremely valuable. They become much more aware of their own learning processes. They begin to develop their individual approaches to framing and solving complex problems. They feel more confident when placed in open-ended, unpredictable situations.
However, this is a programme that forms an optional part of the law degree. The approach and content of the programme are determined by the tutors. It therefore remains ultimately a dependency model of learning. Consequently, the extent to which students are able to use the problem-solving skills they have acquired in Legal Process outside the context of the course is unclear. A further concern is the time lapse between developing these reflective skills and the students' entry into professional practice.
Like all skills, those of reflection need constantly to be practised. There is a danger that if these skills are not practised and developed during the Bar Vocational Course or the Legal Practice Course and the training contract, they will fall into disuse. The development of expertise in practice thus becomes haphazard and unpredictable.
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Conclusions: Challenges for the Future.
If, as Schmidt et al suggest, expertise seems to consist of matching a problem with similar ones seen before (1990: 619), then developing the novice's capacity to do this through their reflection in action would seem to be an appropriate method to set them on the road towards expertise. However, it is clear that much more work needs to be done to discover how the transfer from 'novicehood' to expertise works in specific domains, like law. To date, the experience of operating a Legal Process course based on the principles of reflective practice has convinced the author of the value of this approach at this stage of a student's development. That is not to say it is a cure-all. The experience with Legal Process also shows just how difficult it is to inculcate effective habits of reflection in a one year course that is one-twelth of an LLB. In common with more traditional approaches to learning, there remain a number of questions about the development and transferability of what has been learned.The following issues therefore need to be addressed:
1. Most fundamentally, as a prerequisite to curriculum development, a clearer, research- based understanding of the legal problem-solving process needs to be developed. In particular:
(a) Should an attempt be made to further unpack the Dreyfuses' model of development from novice to expert? Is the notion of a 'novice' as unproblematic as this appears to assume?(b) To what extent are the skills and processes of reflective practice, if taught at the undergraduate level, transferable to the vocational stage and early professional life?
(c) More generally, how can we enable students to move from dependency to independence through reflective practice? Just how generalisable are the skills that we teach?
2. Then, if it is accepted that a primary aim of legal education (viewed as a continuum from the academic to continuing phases) is to develop professional expertise in problem-solving, consideration must be given to the implications this has for the curriculum. At present, there are a variety of competing models - problem-based learning; Nathanson's problem-solving approach, and a range of discovery and clinical methods which address problem-solving processes perhaps less directly and less coherently. Is there a 'right' way?
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Footnotes
(1) This programme is facilitated jointly with Julian Webb. Back to text
(2) The approach in this course, and to legal education generally, is a 'holistic' one which plays down the significance of the academic/vocational divide (see Webb 1995). Back to text
(3) Philip Jones has usefully drawn together much of the critical literature in a forthcoming paper: (see Jones, 1996). Back to text
(4) The point has been made before that lawyers tend to prefer learning styles and approaches that are 'left-brained', i.e. logical, analytical, controlled, conservative. (see Armytage, 1995). Are these orientations likely to be reflected in their approach to problems? Back to text