Using Real Practice Systems Theory to Understand Mediation Clearly

Two recent articles in Mediation Magazine offer a valuable opportunity to reconsider how we talk about mediation and what we actually do when we mediate.

Joan Stearns Johnsen’s Evaluative v. Facilitative Mediation Style: RIP to an Outdated Paradigm argues that it is time to stop pretending that the field is still divided by the old “facilitative vs. evaluative” debate.[i]  The labels are still widely used, but they are poorly defined, inconsistently applied, and often misunderstood – not just by parties, but also by lawyers and even mediators themselves.  Johnsen appropriately points out that continuing to use these terms may actually distract us from the ethical and practical questions we should be asking.

In “Winning” the Mediation vs. Resolving the Dispute: How Mediators Can Prepare Counsel (and Clients) for Real Resolution, Christopher M. Ernst offers a realistic account of what often happens in practice:  some lawyers treat mediation as if it were trial lite.[ii]  He encourages mediators to intervene early and help reset expectations before mediation sessions even begin.

This article builds on arguments in both articles and takes them a step further.  It expands the critique of the facilitative–evaluative framework and the case for good preparation before mediation sessions.

Drawing on Real Practice System (RPS) Theory, this article provides a more complete framework for realistically describing mediation.  A clear, coherent perspective can help individual practitioners and dispute resolution programs develop more conscious and effective systems for managing ongoing streams of cases.  RPS Theory emphasizes clear communication using language that parties can understand, so they know what to expect and how mediation works.

Problems with “Facilitative” and “Evaluative” Labels

Imagine describing the trunk of an elephant, but your listener thinks you’re talking about its tail.  This kind of confusion often happens when someone refers to “facilitative” or “evaluative” mediation.  The speaker assumes the listener understands exactly what is meant.  Often, the listener does not.  Worse still, the speaker may act on that misunderstanding, assuming that the listener understood correctly.

Language is supposed to help people understand each other.  That’s the whole point. When someone uses a term like “facilitative mediation,” a listener should be able to know what kind of behavior to expect.  But that’s not what happens.  Instead, people talk past each other, misinterpret intentions, and sometimes shape their conduct around faulty assumptions.

These labels persist in our field, partly out of habit and partly because they provide a superficially convenient way to describe mediation.  Some mediators strongly identify with these labels.  Others use them as shorthand in conversations with colleagues or clients.  Many training materials, court rules, and professional standards still use them.  The aura of familiarity keeps them in circulation.

Leonard Riskin – the originator of these terms – recognized that the facilitative-evaluative typology is confusing for many reasons.[iii]  One problem, he explained, was that people often treated the distinction as a dichotomy rather than a continuum.[iv]  Mediators were labeled as facilitative or evaluative, even though many routinely used techniques associated with both approaches in a single case.[v]

The typology also fails to account for timing and context.  A mediator might spend most of a mediation session moderating a discussion and offer a substantive evaluation as a last resort.[vi]  Reducing the mediator’s work to a single label ignores the interactive and dynamic process that mediators often use in response to unfolding circumstances.

Michael Moffitt observed that much of the confusion about terms like “facilitative” and “evaluative” stems from a common but flawed practice:  using what he called “prescriptive-acontextual” definitions.  These definitions prescribe what speakers believe that mediation should be without accounting for how it actually works in varied settings.  He urged a shift to “descriptive-contextual” definitions, which describe actual mediation behavior in different types of cases and with different types of clients.[vii]

Consider two contrasting scenarios.  In one case, a self-represented consumer is mediating with a large corporation represented by counsel.  In another case, two large corporations, each represented by experienced attorneys, are in a mediation guided by a commercial mediator.

The idea that “evaluative” or “facilitative” techniques can or should be uniformly applied in both contexts ignores the profound differences in party capacity, legal representation, power dynamics, and risk tolerance.

Mediation is not a standardized process.  It is dynamic, shaped by many variables that unfold over time.  Yet advocates of prescriptive-acontextual labels typically apply them without regard to such distinctions.  These definitions perpetuate counterproductive conflict in the mediation field but do little to help parties understand what will actually happen in mediation.

A recent study confirms what many mediators know from experience.  The terms “facilitative” and “evaluative” are not just vague.  They are inconsistently defined, misunderstood by both practitioners and parties, and often misleading in application.[viii]

The solution is not to argue over which label is better or to create new labels.  It is to recognize that the labels themselves are part of the problem.  If we want to improve parties’ understanding and participation in mediation, we should stop trying to fit a varied and complex process into any single label.  We should ask specifically what mediators are doing, why they are doing it, and how it affects the parties’ ability to make good decisions.

Preparation Is the Beginning of the Mediation Process

Mediation often begins with preparation by mediators, lawyers, and parties before they meet for mediation sessions.  Ernst urges mediators to take an active role in helping lawyers and clients prepare for mediation sessions, including initiating conversations beforehand, shaping expectations, and helping participants focus on resolution rather than adversarial advantage.  Preparation should help people consider their goals, develop realistic expectations, and clarify how they want to participate.

Empirical research has linked preparation with better party experiences.  One study found that parties who were more thoroughly prepared by their lawyers felt they had greater voice, more influence over outcomes, and a better understanding of the process. They viewed mediators as more impartial and respectful, felt less pressure to settle, and were more likely to reach agreement – and to view that agreement as fair.[ix]

In each case, mediators should do whatever they reasonably can before the first session to make the process as productive as possible.  Mediation can be challenging even when parties are well prepared.  It becomes much harder when they are not.  Similarly, mediators and lawyers are more effective when they prepare in advance.

Mediators, lawyers, and parties should have a clear, shared understanding of how the process will work.  Ideally, this includes who will attend the session, the mediator’s general approach, the procedural context, negotiation history, disputed and undisputed issues, interpersonal dynamics, and logistical or technological plans.  Parties and lawyers should be prepared to discuss the facts, legal issues, interests, and negotiation strategies.  Mediators should plan for the exchange of helpful summaries, not adversarial arguments.[x]

Describing Mediation with Clear Language – A Real Practice Systems Perspective

To improve the quality of mediation, we need a clear and realistic way to describe it.  That means moving away from vague stylistic labels and toward a more complete and accurate description of what actually happens in practice.  Real Practice System (RPS) Theory provides a framework to do just that.

RPS Theory recognizes that all practitioners – including mediators and lawyers representing clients in mediation – operate within unique practice systems shaped by their values, experience, goals, and constraints.  Their systems include standard routines and case-specific strategies.  Some elements are unconscious and habitual.  Others are intentional choices made in response to particular challenges.  Practitioners tailor their systems to the kinds of cases and parties they usually deal with, as well as the particular dynamics of each case.[xi]

Table 1 illustrates four stages of mediation involving represented parties and the activities of lawyers, parties, and mediators at each stage.  Individuals may not complete all the tasks shown in the table or perform them optimally.

Table 1.  Mediation Practice System

Case Evaluation and Client Education

Before the mediation session takes place, lawyers evaluate the case, advise clients about procedural options and potential outcomes, and agree on a plan for the case.  Clients may be required to mediate by contract or court order.  If not, they discuss whether mediation would be appropriate.  If clients are interested in mediation, the lawyer contacts the other side to assess their interest.  If the parties agree to mediate, the lawyers agree on the selection of a mediator.

Preparation for Mediation Sessions

This stage may involve identifying issues, exchanging information, and arranging logistics.  Mediators may play a central role by coordinating activities to set the stage for the mediation session. 

The Mediation Session

This is the part most commonly associated with mediation, but it is only one stage in a larger process.  Mediators structure and manage the process, help participants pursue their goals, and explore acceptable agreements.  Lawyers try to advance their clients’ interests using adversarial, cooperative, or mixed approaches.  Parties participate more or less actively and ultimately decide whether to reach agreement and, if so, on what terms.

If the parties reach agreement, mediators often arrange for a summary to be drafted and for plans to finalize and execute a complete agreement.  If the parties do not reach agreement, mediators may lead a discussion about possible next steps in the dispute.

Follow-Up and Implementation

Important activity often takes place after mediation sessions.  If parties reach agreement, lawyers typically draft the agreement, arrange for the parties to sign it and any related documents, and implement the terms.  If parties do not reach agreement, lawyers proceed with another process, which may later involve mediated or unmediated negotiation.

Mediators and lawyers may reflect on the process, considering what they learned and how they might improve their techniques in future cases.

Value Added by RPS Theory

RPS Theory builds on Johnsen’s and Ernst’s important points about the reality of mediation.  Johnsen identifies the oversimplification inherent in the “facilitative” and “evaluative” labels.  Ernst appropriately emphasizes the importance of thoughtful preparation before mediation sessions begin.

Rather than relying on abstract typologies, the RPS framework offers a clear, realistic way to understand mediation.  It focuses on participants’ behavior, not oversimplified labels.  Mediation does not fit neatly into theoretical “boxes.”  Different kinds of parties and cases call for different approaches, and mediators often adapt their strategies in particular situations – not confined to theories like “facilitative” or “evaluative” mediation.

RPS Theory helps people see mediation as a series of connected steps rather than a single event.  It provides a more complete picture of how mediation works in practice – before, during, and after mediation sessions.

Instead of treating mediation as a performance with the mediator in the leading role, RPS Theory portrays the process more as a realistic ensemble, where all participants shape the direction and outcome.  Conventional accounts often focus exclusively on mediators’ actions during the sessions, ignoring the important activities that occur before and afterward.  These accounts often overlook or discount the important role of lawyers, whose choices about mediator selection can substantially affect the process and outcomes.

This broader perspective enables more effective planning, better preparation of parties, more relevant training for new practitioners, and court program design that reflects real practice.

The theory also encourages clearer communication – not only about facilitative-evaluative terminology, but across the field more generally.[xii]  For example, it identifies problematic terms such as “BATNA” (best alternative to a negotiated agreement) and “pre-mediation.”

Many sophisticated dispute resolution professionals misunderstand BATNA, believing that it refers to the outcome of an alternative process rather than the process itself.  Many also assume that it is a fixed amount rather than an assessment of a preferable process if the parties do not reach agreement.  When estimating the value resulting from the alternative process, people often focus only on the expected court outcome without considering the tangible and intangible costs of continued disputing.  For example, parties should consider the impact of damaged relationships, reputation, stress of continued disputing, lost opportunities, and other relevant factors when evaluating options and strategies.[xiii]

“Pre-mediation” implies that the procedures leading up to the session are not part of mediation.  This is problematic because preparation is very important, as Ernst points out, and it should be covered by mediation confidentiality.[xiv]

Conclusion

It is time to let go of the terms “facilitative” and “evaluative,” which obscure more than they reveal.  We should systematically promote good preparation, clearly identifying what that preparation involves and how it fits into a larger, ongoing process.

Real Practice System (RPS) Theory provides practitioners, programs, and parties a clearer view of what mediation really is – a series of practical steps shaped by human choices, values, and habits.  By describing what people actually do before, during, and after mediation sessions, RPS Theory promotes better training, planning, and public understanding.  Most importantly, it helps create systems where people can make realistic, informed decisions – which is the heart of good mediation.