Mediation Advocacy
Mediation Representation
Formula
for
Problem Solving Mediation
Hal Abramson
&
John Barkai
Mediation is a Noun
Different Adjectives
Mediator’s are:
Facilitative
Evaluative
Transformative
Parties are:
Adversarial - Problem Solving
Subject matter varies great:
Community, Commercial, Family Law, etc
Hal Abramson’s Approach
In mediation, you should negotiate using a
creative problem-solving approach to
achieve the two goals of meeting your
client’s interests and overcoming any
impediments to settlement.
Your negotiation strategy should take specific
advantage of the presence of a mediator at
each of the 6 key junctures in the
mediation process
Three Primary Features
to
Hal Abramson’s Approach
Negotiation Approach: Problem-Solving
Advance Your Client’s Interests
Overcome Impediments
Strategy:
Enlist Assistance of the Mediator
Implement the approach:
At 6 Key Junctures in the mediation
Strategy:
Enlist the Assistance
of the Mediator
Look at the mediator’s
A. Approaches
B. Techniques
C. Control of the Stages
Mediator’s Approaches
Manage Process: Facilitative or Evaluative
View Problem: Broadly or Narrowly
Caucusing: Primarily, Selectively, or None
Client Involvement: Actively or Restrictively
The Riskin Grid
Evaluative
Evaluative
Narrow
Evaluative
Broad
Narrow
Broad
Facilitative
Facilitative
Narrow
Broad
Facilitative
Key Stages of the
Mediation Process
A. Selecting Mediator
B. Pre-Mediation Conferences
C. Pre-Mediation Submissions
D. Opening Statements
E. Joint Sessions
F. Caucuses
Impediments
(interests)
DRIPS
Data conflicts
Relationship issues
Interests
Principals (values)
Structural
Source: Christopher Moore
Moore's Circle of Conflict

Five central causes of conflict
1. Problems with peoples'
relationships
2. Problems with data
3. Differing values
4. Structural factors
5. Perceived or actual incompatible
interests
RELATIONSHIP
PROBLEMS
- Strong emotions
- Misperceptions or stereotypes
- Poor or miscommunication
- Negative, repetitive behavior
VALUES
DIFFERENCES
- Lack of information
- Misinformation
- Different views on what is
relevant
- Different interpretations of
data
- Day to day values
- Terminal values
- Different assessment
procedures
PS
CA
GI
LO
HO
YC
INTERESTS
L
- How a situation is set up
- Role definitions
- Time constraints
- Geographic/physical relationships
- Unequal power/authority
- Unequal control of resources
PR
OC
ED
UR
AL
- Self definition values
STRUCTURAL
PROBLEMS
DATA
PROBLEMS
SUBSTANTIVE
Three Types of Interests
How to “Borrow” a Mediator’s Powers
Dwight Golann
John Barkai
The Main Points
Mediation is a flexible process
The mediator controls the process
Lawyers can influence the mediator,
and thereby influence the process
Advocates can
“Borrow” a Mediator’s Powers
to be a more effective negotiator
in a mediation
The mediator’s goal
is to get a settlement
To do this, the mediator:
Controls the format & process
Is usually open to process suggestions
Separates or keeps the parties together
Moderates the negotiation
Gathers data
Keeps confidences
Is seen as neutral
Actually is neutral
Can offer a “mediator’s proposal”
Mediators have NO power
to decide the dispute
but
Mediators have wide power
to control the process of
bargaining
A mediators’ goal is to find a settlement:
• Mediators are often open to advocates’ suggestions
• Wise lawyers intervene actively to shape the process
The mediator brings the parties together
• Opening Statements & Joint Sessions
• Presence of a mediator makes such
negotiation different than previous
negotiations without a mediator present
The mediator brings the parties together
• Mediators decide when the parties stay
together for joint sessions and when they
separate for caucuses
• The opening session is a unique opportunity
to speak directly to the other party
Don’t waste it!
The Opening Statement
Different than trial opening
•
•
•
•
•
•
Talk directly to other side
Present case confidently, not adversarialy
Show you hear their viewpoint
Use visual aids to support your points
Consider having client or expert speak
Can offer conciliatory statements
Mediators decide the format:
• Mediators generally use private caucuses
• Consider asking for joint meetings
• Consider asking for a “principals only” or
“attorneys only” meeting
The mediator moderates the negotiation:
• Influences what issues are discussed
• Sets deadlines
• Especially when disputants are in caucuses
Ask the mediator to:
• Pose questions to the other side
• Adopt the negotiation format you prefer
• Reinforce or delay deadlines
• Focus or deflect attention from an issue
The communication of feelings and attitudes
(i.e., like-dislike)
Albert Marabian- UCLA
7%
“the words”
38%
“tone of voice”
10
55%
“body language”
A mediator’s role is flexible. Ask them to:
•
•
•
•
•
Raise "irrelevant” or non-legal issues
Use “non-lawyerly” techniques
Deliver bad news
Certify the fairness of a settlement
Act as scapegoat for a compromise
Mediators gather data -- Ask about:
• Data about the case and the personalities
of TOP (The Other Party)
• TOP’s goals and current attitude
• TOP’s likely response to your moves /
tactics
Mediators respect confidences:
• Give a mediator secret “ammo" in caucus
• Float ideas and get mediator's reaction
• Ask mediator to talk to unrealistic clients
Mediators are seen as neutral & unbiased
• This is a mediator’s greatest single power
• Your proposal will be viewed suspiciously,
but same idea from a mediator will be heard
(reactive devaluation)
Use a mediator’s perceived neutrality
Ask a mediator to:
•
Make your arguments to other side
•
Float your proposal as their own
•
Deliver bad news to your adversary
Mediators actually are neutral:
• Mediators can predict court’s reaction
• Use the mediator to give you a reality check
• Be careful about asking for an evaluation
that is given to both sides.
Issues when asking for an evaluation:
• Are you sure that you will prevail?
• Will the “winner” dig in?
• What issue do you want evaluated?
• How specific an opinion do you need?
Mediators can offer a “mediator’s proposal”:
Mediator proposes "package” of terms
• Offer is on a take-it-or-leave-it basis
• If both agree, there is a deal
• If one says no, they never learn
whether other would take it
•
Implications of a mediator’s proposal:
• Parties are negotiating with the neutral
• Ask for input before proposing terms
• If there is a danger that the proposal will
exceed your limits, warn the mediator
• If proposal fails, what do you want to
happen next?