mediation advocacy. mediation representation formula for problem solving mediation hal abramson...

Mediation AdvocacyMediation Advocacy

Mediation Mediation Representation FormulaRepresentation Formula

for for Problem Solving Problem Solving

MediationMediation

Hal Abramson

&

John Barkai

Mediation is a NounMediation is a Noun

Different AdjectivesDifferent AdjectivesMediator’s are:Mediator’s are:

FacilitativeFacilitativeEvaluativeEvaluativeTransformativeTransformative

Parties are:Parties are:Adversarial - Problem SolvingAdversarial - Problem Solving

Subject matter varies great:Subject matter varies great:Community, Commercial, Family Law, Community, Commercial, Family Law, etcetc

Hal Abramson’s ApproachHal Abramson’s Approach

In mediation, you should negotiate using a In mediation, you should negotiate using a creative problem-solving approach to creative problem-solving approach to achieve the achieve the two goalstwo goals of of meeting your meeting your client’s interestsclient’s interests and and overcoming any overcoming any impedimentsimpediments to settlement. to settlement.

Your negotiation strategy should Your negotiation strategy should take take specific advantage of the presence of a specific advantage of the presence of a mediatormediator at each of the at each of the 6 key junctures6 key junctures in the mediation processin the mediation process

Three Primary FeaturesThree Primary Featurestoto

Hal Abramson’s Approach Hal Abramson’s ApproachNegotiation Approach: Negotiation Approach: Problem-SolvingProblem-Solving

Advance Your Client’s InterestsAdvance Your Client’s InterestsOvercome ImpedimentsOvercome Impediments

Strategy: Strategy: Enlist Assistance of the MediatorEnlist Assistance of the Mediator

Implement the approach:Implement the approach:At 6 Key Junctures in the mediationAt 6 Key Junctures in the mediation

Strategy:Strategy: Enlist the Assistance Enlist the Assistance

of the Mediatorof the MediatorLook at the mediator’sLook at the mediator’s

A. ApproachesA. Approaches

B. TechniquesB. Techniques

C. Control of the StagesC. Control of the Stages

Mediator’s ApproachesMediator’s Approaches

Manage Process: Facilitative or EvaluativeManage Process: Facilitative or Evaluative

View Problem: Broadly or NarrowlyView Problem: Broadly or Narrowly

Caucusing: Primarily, Selectively, or NoneCaucusing: Primarily, Selectively, or None

Client Involvement: Actively or Client Involvement: Actively or RestrictivelyRestrictively

Evaluative Evaluative Narrow Broad

BroadNarrow

Facilitative Facilitative

Narrow Broad

Evaluative

Facilitative

The Riskin Grid

Key Stages of the Key Stages of the Mediation ProcessMediation Process

A. Selecting MediatorA. Selecting Mediator

B. Pre-Mediation ConferencesB. Pre-Mediation Conferences

C. Pre-Mediation SubmissionsC. Pre-Mediation Submissions

D. Opening StatementsD. Opening Statements

E. Joint SessionsE. Joint Sessions

F. CaucusesF. Caucuses

ImpedimentsImpediments(interests)(interests)

DRIPSDRIPS

Data conflictsData conflicts

Relationship issuesRelationship issues

InterestsInterests

Principals (values)Principals (values)

Structural Structural Source: Christopher MooreSource: Christopher Moore

Moore's Circle of Moore's Circle of ConflictConflict Five central causes of conflictFive central causes of conflict

1.1. Problems with peoples' Problems with peoples' relationshipsrelationships

2.2. Problems with dataProblems with data

3.3. Differing valuesDiffering values

4.4. Structural factorsStructural factors

5.5. Perceived or actual incompatible Perceived or actual incompatible interestsinterests

RELATIONSHIPPROBLEMS

DATAPROBLEMS

VALUESDIFFERENCES

STRUCTURALPROBLEMS P

SY

CH

OLO

GIC

AL

PR

OC

ED

UR

AL

SUBSTANTIVE

INTERESTS

- S trong em otions- M isperceptions or stereotypes- Poor or m iscom m unication- Negative, repetitive behavior

- Lack of inform ation- M isinform ation- D ifferent v iews on what is relevant- D ifferent interpretations of data

- D ifferent assessm ent procedures

- Day to day values- Term inal values

- Self definition values

- How a situation is set up- Role definitions- T im e constraints- Geographic/physical relationships- Unequal power/authority- Unequal control of resources

Three Types of Three Types of InterestsInterests

How to “Borrow” a Mediator’s Powers

Dwight GolannJohn 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 goalis to get a settlement

To do this, the mediator:

Controls the format & processIs usually open to process suggestionsSeparates or keeps the parties together

Moderates the negotiationGathers data

Keeps confidencesIs seen as neutral

Actually is neutralCan 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

• Deliver messages in certain way

55%

“body language”

38%

“tone of voice”

7%

“the words”

The communication of feelings and attitudes (i.e., like-dislike)

Albert Marabian- UCLA

10

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 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.

Mediators actually are neutral:

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?