Mediation Advocacy

Mediation Representation Formula for Problem Solving Mediation Hal Abramson & John Barkai

Mediation is a Noun Different Adjectives Mediator’s are: FacilitativeEvaluativeTransformative 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

Evaluative Narrow Broad BroadNarrow Facilitative Narrow Broad Evaluative Facilitative The Riskin Grid

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 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

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 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?