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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

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mediation representation formula for problem solving mediation

Mediation Representation Formulafor Problem Solving Mediation

Hal Abramson


John Barkai

mediation is a noun
Mediation is a Noun

Different Adjectives

Mediator’s are:




Parties are:

Adversarial - Problem Solving

Subject matter varies great:

Community, Commercial, Family Law, etc

hal abramson s approach
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
Three Primary Featuresto Hal Abramson’s Approach

Negotiation Approach: Problem-Solving

Advance Your Client’s Interests

Overcome Impediments


Enlist Assistance of the Mediator

Implement the approach:

At 6 Key Junctures in the mediation

strategy enlist the assistance of the mediator
Strategy:Enlist the Assistance of the Mediator

Look at the mediator’s

A. Approaches

B. Techniques

C. Control of the Stages

mediator s approaches
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 Broad



Facilitative Facilitative

Narrow Broad


key stages of the mediation process
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


Data conflicts

Relationship issues


Principals (values)


Source: Christopher Moore

moore s circle of conflict
Moore's Circle of Conflict

Five central causes of conflict

Problems with peoples' relationships

Problems with data

Differing values

Structural factors

Perceived or actual incompatible interests

three types of interests
Three Types of Interests





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
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”


Mediatorshave NO power

to decide the dispute


Mediators have wide power

to control the process of bargaining

a mediators goal is to find a settlement
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
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 together23
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
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 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
The mediator moderates the negotiation:
  • Influences what issues are discussed
  • Sets deadlines
  • Especially when disputants are in caucuses
ask the mediator to
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


“the words”


“tone of voice”


“body language”

The communication of feelings and attitudes

(i.e., like-dislike)

Albert Marabian- UCLA


a mediator s role is flexible ask them to
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
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
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
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
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 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
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
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
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?