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A Practical Guide for Using the RPS Negotiation and Mediation Coach
No full textThis two-page guide introduces the RPS Negotiation and Mediation Coach, an AI-powered tool grounded in Real Practice Systems (RPS) theory. It explains who can use RPS Coach, how it supports good decision-making, and the range of tasks it can perform. It is designed for attorneys, mediators, parties, ADR program administrators, educators, and students to improve the quality of dispute resolution practice, program design, and legal education. Practitioners and parties can use it to prepare for, participate in, and reflect on negotiation and mediation. Faculty can use it to develop syllabi, assignments, and simulations. Users can explore ideas, generate drafts, and get feedback on their work. It serves as a resource for research, teaching, and program design in dispute resolution
How AI Can Help Mediators Say What They Really Mean
No full textThis article critiques the widespread use of the terms “facilitative” and “evaluative” to describe mediation techniques. Despite their popularity in scholarship and practice, these labels are inconsistently defined, frequently misunderstood, and fundamentally flawed. Drawing on a survey of mediation experts, the article documents significant confusion about how professionals interpret these terms – and how they think that others interpret them. It builds on Leonard Riskin’s critique of the facilitative-evaluative framework, which shows that the language not only oversimplifies complex processes but also risks confusing parties and undermining informed decision-making.
As an alternative, the article proposes a behavioral vocabulary that reflects mediators’ values and describes their actions in plain language. It argues that artificial intelligence (AI) tools, such as the Real Practice Systems Coach, can promote better communication by using clear terminology. The article suggests that AI tools might be more effective than traditional human-centered reform efforts in promoting the use of clearer language. It urges AI developers, writers, educators, and practitioners to support party decision-making by making mediation easier to understand
Promoting Better Dispute Decision-Making with an AI Tool Built on RPS Theory
No full textTraditional theories of negotiation and mediation rely on rigid models, false dichotomies, and confusing terminology that fails to reflect the complexity of real practice. This article critiques those theories and introduces Real Practice Systems (RPS) theory as a more accurate and practical alternative.
RPS theory conceptualizes negotiation and mediation as sequences of professional judgment shaped by context, experience, and goals, rather than as idealized or linear processes. It promotes a realistic and ethically responsible practice by encouraging reflection, intentional process design, and adaptability.
The article introduces “RPS Coach,” a free artificial intelligence tool built on the ChatGPT platform. It is designed to support good decision-making by parties, lawyers, mediators, educators, and program administrators. It helps users prepare, analyze, reflect, and improve their practice habits over time. The article concludes by considering the promise and limitations of AI in dispute resolution and offers a vision for AI tools that enhance rather than replace human judgment
Using AI to Promote Student Learning Through Preparation for and Reflection about Simulations
No full textThis article provides model language for a course assignment in which students use artificial intelligence (AI) tools to prepare for and reflect on simulations. The assignment promotes deep learning and supports formative assessment by helping faculty see how students think, make choices, and develop insights. Students upload the simulation materials and the assignment to an AI tool, use it to plan for the simulation, and return to the same chat afterward to reflect. They then ask the AI to generate a draft paper, which they revise using the Track Changes feature in Word. Faculty can use the same feature to efficiently provide feedback.
This approach helps students develop the professional habits of preparation, reflection, and revision – skills that are essential but often under-emphasized. The article includes optional enhancements and guidance on selecting AI tools, and it encourages faculty to help students learn to use these tools as they will in professional life
Barnette’s Robert H. Jackson: The Constitution Protects Individual Conscience When the Cost to Society Is Not Too High
No full textThis essay, part of a symposium on Linda McClain’s and James Fleming’s book “WHAT SHALL BE ORTHODOX” IN POLARIZED TIMES, is about Justice Robert H. Jackson’s opinion for the Supreme Court in West Virginia State Board of Education v. Barnette. Justice Jackson explained in Barnette how the U.S. Constitution protects schoolchildren conscientious objectors from being compelled by government to salute and to pledge allegiance to the U.S. flag. But Barnette was not, as the Supreme Court recently seems to read it, an absolutist decision constitutionalizing individual conscience claims to be exempt from societal, general, significant interests in compelling speech. Barnette was about the individual in society, and how the Constitution strikes a balance between competing individual and societal interests. Much of Barnette’s balance-striking in favor of individual difference correlates with aspects of Jackson’s own life. Seeing this and focusing closely on Jackson’s actual Barnette words illuminates that the decision was pragmatic, concerned with society as much as or maybe more than it was concerned with the Jehovah’s Witnesses who objected to compelled flag salutes and pledges of allegiance
Is Current “Repeat Player” Theory Much Ado Over Much Less—An Evidence-Based Overhaul
No full textThis empirical study suggests that the existence and impact of the “repeat player effect” (“effect”) may be exaggerated. Legal and conflict resolution theorists suggest that the existence of repeat players is a process flaw. They opine that first time players (“one-shotters”) are at a disadvantage to repeat players. Stulberg extended this process flaw theory to mediation
Volunteered or Voluntold: Effectiveness of Good Faith Clauses on Court-Ordered Mediation
No full textMediation is the “process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” There is a growing trend in many states and the federal government to allow courts to refer parties to mediation or other forms of alternative dispute resolution (“ADR”). However, one of the distinguishing elements of a mediation is that the parties come to a voluntary agreement. If the court has forced the parties to mediate, does that negate the voluntary nature of mediation? The answer to this question appears to be yes, but the real question is whether these mediations can still serve their original purpose without being strictly voluntary
Cooperative Creativity: The ADR Foundations of Modern Dance Copyright
No full textIn the mid-twentieth century, the landscape of copyright was quickly changing, facing new technologies as well as cultural changes that would ultimately test the limits of the 1909 Copyright Act. Choreographic copyright protection changed immensely throughout the last half of the twentieth century, and one ballet company at the forefront of the changing tides of copyright law was the New York City Ballet (“NYCB”), led by choreographer George Balanchine. By the time Balanchine passed, the legacy of both his company, NYCB, and his body of copyrighted work was immense enough to determinatively color the way choreographic copyrights are handled under the Copyright Act of 1976. Balanchine’s works showed above all that litigation is not the only answer when it comes to preserving rights in creative works, particularly for parties who are not equipped for the long and expensive process that litigation entails
Whose Right(s)?: Civil Rights Impact of Cultural Conflicts in the Curriculum
No full textStatutes seeking to prohibit the teaching of certain curricular topics that are considered divisive infringe upon the civil rights of students, parents, and teachers. The conflict over what should be taught implicates the rights of students, specifically their right to receive and to learn information; the rights of parents, specifically the right to control the education of their children; and the rights of teachers, specifically the First Amendment and academic freedom. “Anti-Woke” legislation, as it is broadly termed, is designed to silence those who seek to engage in the critical analysis of the structural and systemic barriers that have prevented the United States from fulfilling its idealistic yet unrealized founding principles that all men are created equal. In short, it has brought the culture war directly into the classroom and the content of school curricula is the battleground. Amidst the “anti-woke” national outcry, opposition to a variety of different curricula and ideas can be found such as the demonization of a pedagogy created in the legal academy, i.e., Critical Race Theory (CRT) to a history project popularized in a mainstream newspaper, i.e., the 1619 Project, to curricula focused on African Americans, gender identity, gender, and other marginalized groups to work related to Diversity, Equity and Inclusion (DEI). The conflation of these varied concepts was intentional and designed to galvanize support from parents and others for political purposes. The “Anti-Woke” adherents falsely believe that colleges and universities, and K-12 schools purposefully use all these concepts to engage in the Leftist indoctrination of students. In response to this fear, States have engaged in a concerted campaign to pass anti-woke legislation to erase and rewrite history and by extension to silence marginalized voices
NCTI is the New GILTI, and States Should Still Conform
No full textThis essay continues our series on corporate profit shifting by analyzing how states should respond to the federal One Big Beautiful Bill Act, which transformed GILTI into the new Net Controlled Foreign Corporation Tested Income (NCTI) regime. We argue that states should conform to this new federal provision as a reasonable and legally sound approach to combatting the persistent profit shifting that erodes state tax bases. The 60 percent inclusion rate for NCTI effectively serves as a practical, rough justice estimate of income that was economically generated domestically but improperly shifted offshore — an estimate supported by empirical research. We also explain why the elimination of the QBAI deduction does not weaken the case for conformity. For taxpayers who believe this 60 percent default rule is not apt for their specific circumstances, states already provide safety valves, such as alternative apportionment petitions or elective worldwide combined reporting. We conclude that conforming to NCTI is a practical and essential tool for states to protect their revenue, and is far superior to water\u27s-edge approaches that effectively surrender to corporate tax avoidance