The Real Practice Systems (RPS) Project grew out of dissatisfaction with traditional mediation theories, which are incomplete and misleading. I first articulated RPS theory in my 2023 Cardozo Journal of Conflict Resolution article, Real Mediation Systems to Help Parties and Mediators Achieve Their Goals. It identifies problems with traditional mediation theories, argues that dispute system design theory provides a more realistic framework for analyzing mediation activities, outlines the rationale for RPS theory, and illustrates the theory by using in-depth analyses of the mediation systems of ten experienced mediators.
RPS theory holds that all practitioners have unique systems that grow out of their experiences and evolve over time. Their systems are based on their personal histories, values, goals, motivations, knowledge, skills, and procedures as well as the parties and the cases in their practice. They develop categories of cases, parties, and behavior patterns in their cases. They use unconscious routine procedures as well as conscious strategies to deal with recurring challenges.
In mediation, these systems include practitioners’ thoughts and actions before, during, and after mediation sessions. Mediators and attorneys in mediation can use the RPS framework to (1) become more conscious of how they think and why they act as they do in mediation and (2) intentionally improve their techniques.
The following graphic illustrates mediation practice systems, particularly the following important stages. The blue cell highlights attorneys’ actions before mediation sessions to prepare their clients. The yellow cell highlights mediators’ role in coordinating preparation for mediation sessions. The green cell highlights mediators’ actions during mediation sessions. The orange cell is the most important — when parties make decisions during mediation sessions.
I expanded the scope of the project to include related topics. This post includes links to key pieces about attorneys’ real practice systems as well as applications in legal education.
The RPS Annotated Bibliography includes related publications, including precursors to RPS theory. Here’s the table of contents:
1. Introduction
2. Overview of Real Practice Systems Theory
—–A. Role of Attorneys, Including Mediation Representation
3. Critiques of Traditional Dispute Resolution Theories
—–A. “Alternative” Dispute Resolution Theory Generally
—–B. Negotiation Theory
—–C. Mediation Theory
4. Promotion of Party Decision-Making
5. Litigation Interest and Risk Assessment
6. Preparation for Mediation Sessions
7. Technology Systems
8. Planned Early Dispute Resolution
9. Dispute System Design
10. Applications in Court Systems
11. Applications in Legal Education
Here are some particularly helpful pieces, which faculty may include in their courses.
Mediators’ Real Practice Systems
Summary of RPS Theory – Concise summary including helpful graphic.
Shifting the Central Paradigm to Dispute System Design – DSD is about tailoring dispute systems by both organizations and individual practitioners to improve their case management and dispute resolution procedures.
Ten Real Mediation Systems – Short summary of ten mediators’ actual practice systems, adapted from the Cardozo article.
How The Real Mediation Systems Project Can Help Improve Mediation Quality – The Project encourages practitioners to be more conscious and intentional about their mediation practices. This is especially important considering the limited efficacy of ethical, legal, and theoretical standards in protecting parties’ interests.
Checklists for Mediators – Extensive list of procedures that mediators may use including: (1) general information that mediators provide on websites and/or other materials, (2) compliance with ethical requirements, (3) tasks before mediation sessions, (4) tasks during mediation sessions, and (5) reflection and improvement of techniques.
Practitioners Tell Why Real Practice System Checklists Are So Useful – Practitioners describe how the checklists can help mediators carefully design their unique practice systems.
The Critical Importance of Pre-Session Preparation in Mediation – Mediation programs and mediators should do whatever they reasonably can before the first mediation session to make the process as productive as possible.
How Can Courts – Practically for Free – Help Parties Prepare for Mediation Sessions? – Based on a review of websites of all 94 federal district courts, this article offers recommendations for courts, highlighting praiseworthy provisions and materials from some courts. It includes an extensive appendix collecting resources for parties, attorneys, and mediators.
Party Self-Empowerment from Preparation for Mediation Sessions – Well-prepared parties can make decisions before and during mediation sessions rather than simply relying on mediators to promote parties’ self-determination.
The Evolution To Planned Early Multi-Stage Mediation – Multi-stage mediation enables mediators to schedule a series of conversations with particular individuals in a sequence that would be most helpful.
How You Can Solve Tough Problems in Mediation – Description of techniques when participants are not well prepared before mediation sessions, have unrealistic expectations, and act very emotionally.
Using Real Mediation Systems Resources in Practice – Resources to help mediators better understand and improve their mediation approaches. Trainers and mediation program administrators can use these materials in their programs.
Attorneys’ Real Practice Systems
Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better – Article based on interviews with 32 lawyers describing how they prepare for both negotiation and trial.
How Can You Turn Adversarial Attorneys into Quasi-Mediators? – Article growing out of an educational program with attorney-mediators about what mediators can do to persuade adversarial attorneys behave as “quasi-mediators.” Some attorneys generally prefer to be cooperative, tailoring their actions based on their clients’ preferences and the other side’s approach. They help their clients realistically understand the other side’s perspectives, enlist mediators’ help, and encourage the other side to adjust their positions. The article includes appendixes with lists dos and don’ts for attorneys to act as quasi-mediators and topics that mediators can discuss with attorneys to promote cooperation.
How Attorneys Can Be Quasi-Mediators – Based on the preceding article, this two-page piece lists things that mediators can do to promote attorneys’ cooperation as well as lists of dos and don’ts for attorneys to be quasi-mediators. It is an especially useful resource for law students.
Getting Good Results for Clients by Building Good Working Relationships with “Opposing Counsel.” – Techniques for providing effective representation by building good working relationships between counterpart lawyers.
Theory and Practice of Mediation Representation – Theoretical framework for analyzing mediation representation based on review of books outlining elements of mediation representation and identifying practical techniques.
The Important Role of Attorneys in Promoting Parties’ Self-Determination in Mediation – Explanation why attorneys generally have much greater ability than mediators to promote parties’ self-determination. This includes illustrations of two hypothetical cases showing how attorneys might or might not promote good client decision-making.
Checklists for Attorneys in Mediation – Extensive list of procedures for attorneys representing clients in mediation, paralleling the checklists for mediators.
Legal Education
Study Finds That Law Schools Fail to Prepare Students to Work with Clients and Negotiate – Excerpts from the Building a Better Bar study about new law school graduates’ unmet instructional needs. The study found that new lawyers were “woefully unprepared” to work with clients.
Teaching Students to Focus on Party Decision-Making – Description why law schools don’t teach students very much about helping clients make decisions. It includes suggestions for instructional techniques to do so.
Resources for Teaching About BATNA, Bottom Lines, and LIRA – This post provides lots of resources to help faculty teach students about BATNAs and – more importantly – about bottom lines.
It’s Time to Make Important Upgrades to Our Mediation Curriculum – This article includes numerous suggestions and resources that faculty can incorporate in their courses to reflect evolving realities and improved understandings of mediation.
Law Schools Should Substantially Increase Instruction in Mediation Representation – This article presents data showing that American law schools generally focus 10% or less of their mediation curriculum on mediation representation. It describes why this is a problem for students and their future clients. This article suggests that mediation courses should incorporate training both as a neutral and representative, starting from the beginning of the semester.
Creating Educational Value by Teaching Law Students to be Quasi-Mediators – This article suggests, seemingly counterintuitively, that we can increase instruction in mediation skills by combining instruction in neutral and representative roles in mediation courses.
Model Mediation Course Syllabus With Teaching Notes – This course would teach students about mediation of legal disputes in the US, including the roles of both mediators and attorneys. This syllabus sketches an overall framework that instructors can adapt. It includes links to short readings for students available for free, including some that can easily be included in any mediation course and most other dispute resolution courses.
Resources for Using Real Systems Materials in Teaching – Description of how faculty can use ideas and materials from the RPS Project to help students get realistic understandings of practice. It includes templates for assignments that faculty can tailor to their courses.
Take a look.
