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Mediation
Touro Law School
Abramson, Harold I.

Mediation Outline Fall 2014

I. Framework for Advocacy: The Mediation Representation Triangle

· Each side is essential to the strength of the triangle – if any side is week the whole thing collapses

A. The Three Sides:

a. Negotiation Approach: process of negotiation with the help of a 3rd party

i. Positional Approach: is the customary claiming strategy, where you view the dispute as distributive in that you claim something, usually money, at the expense of the other party.

ii. Problem-Solving Approach: search for a solution beyond the traditional ones based on rights, obligations, and precedent. Search for solutions that might benefit both sides, evaluate and package options to meet interests of all parties.

b. Mediator Assistance: What the mediator does and what the process is

c. Mediation Representation Plan: how to prepare for the mediation process

i. Focus on the 3 I’s

A. Interests: what is a parties interest – what is the solution that the parties want and what is the difference between the parties interests

B. Information: mediator needs as much info as possible. The advocates also want as much info as possible. Think of how to get info and how to share without getting hurt by it.

a. Info is needed to get the best possible settlement

C. Impediments: pose conflicts between the parties

a. Five Impediment Approaches

i. Relationship

ii. Data

iii. Interest

iv. Structural

v. Value

ii. Prepare Representation Plan for 6 Junctures

A. Selecting a Mediator: Mediator traits, and style, broad or narrow view, joint session or caucus

B. Premediation Conference: mediator talks with lawyers to prepare all parties involved

C. Premediation Submission: Brief of information you want to relay to mediator

D. Opening Statement: prepare statement, tone, tell story, should client do as well

E. Joint Session: whether with adverse party

F. Caucuses: Separate

II. Style of Approach à Music type (3)

A. Good Practice, Including Justification

a. Present rational justification

B. Tactics: used to influence persuade, and pressure the other side to make concessions

a. Puffery: expected to be done

C. Trick

a. Lied to

III. Positional Negotiation:

· View dispute as a distributive problem win or lose

· View dispute as only one issue, so no opportunity for trades

· Resources as fixed pie

· Compete for larger piece of pie

A. Preparation: you need to establish your aspirational goals and your bottom line as well as develop strategy for presenting an opening offer and engage in the highly stylized negotiation dance.

a. Gather Information: Two key financial parameters

i. Your client’s aspirational goal àwhat client wants based on legal right

ii. Client’s bottom line àBATNA (Best Alternative To a Negotiation Agreement

b. Develop A Plan

i. Formulate 1st offer strategy

1. Two critical factors that affect the first offer strategy:

a. Anchoring phenomenon of offers: how an offer can anchor the recipient’s view of what is possible in negotiation

b. ZOPA – Zone of Possible agreement: this is the overlap between the bottom lines of the two partiesàget the other side to make the 1st offer.

2. Need to decide if the first offer is by the other side or by you

ii. Prepare Opening Offer

1. A realistic first offer reveals that the offeror prepared for and is serious about settling the dispute

2. Prepare open offer in anticipation of making compromises

iii. Plan Concession Dance

1. The offers and counteroffers are backed by carefully orchestrated use of information that surface in the form of arguments, tricks and threats

2. The negotiation dance focuses on solving the narrow presenting problem that was framed in the legal papers

c. Develop Questions: if you have information gaps when formulating opening offer strategy and concession dance plans

i. Try to fill the gaps at beginning of negotiations by preparing gap filling questions

B. Strategies and Stages At the Table

a. Exchange information for specific purpose

i. Establish Rapport

ii. Ask questions

iii. Signal Expectations and leverage

b. Overcoming Impediments

c. Bargaining

i. Implement first offer strategy

ii. Engage in concession dance of offer, counteroffer and concession

d. Play Music

i. Good practice, Justification

ii. Tactics

iii. Tricks

e. Closure

i. Deadline: may need deadline to accelerate closure to the negotiations

ii. Final Bargaining: last minute concessions àmostly split difference

iii. Secure Commitmentàsomething in writing that if not done there are consequences.

IV. Problem Solving Approach: process for creating and claiming

· View problem broadly to encompass underlying interests and needs

· View as shared problem

· View dispute as an integrative opportunity, not a distributive problem

· View dispute as win-win

· Think creatively, outside the legal box

· Search for increased value

· Promote Communication and exchange information

· No early opening offer strategy

· Be open to the other sides view’s and interests

A. Preparation

a. Gather Information

i. Identify Interests: what are the needs that need to be met by the parties

1. What are the clients interests

ii. Identify the Issues: The issues are the subjects you will negotiate for

iii. Identify the impediments: five categoriesà Relationship, Date, Interests, Structural, and value

iv. Assess Bottom Line (total BATNA)

v. Asses Leverage: you can justify getting more for your client by identifying and exerting any other leverage you have in the negotiation

1. Three types of Leverage:

a. Positive Leverage: you have something the other person wants or cannot do without

b. Negative Leverage: when you can make the other side worse off

c. Normative leverage: when you can appeal to principles, such as consistency, reciprocity, ethics, morality or fairness, which the other side subscribes to.

vi. Stimulate Client to Create a Claim: get client to think broadly, creatively and outside the traditional legal box for value that might be the basis for inventive and tailored solutions

b. Plan for Emotions as an Obstacle and Opportunity: Emotional reactions can hurt the resolution of the dispute

i. Three part Plan:

1. Check your own and ot

egrative and distributive issues

iii. Secure commitment

V. Client Interviewing Techniques: Interest

A. Interest:

a. Need to probe your client for substantive interest they have

b. You want to formulate open-ended questions along with follow up clarifying ones

i. Why? Why do you want that

c. Should be alert to interest that mya not be monetary such as:

i. Continuing relationship

ii. Protect reputation

iii. Preserve dignity

iv. Recognized for accomplishments

v. Acknowledge a wrong

d. Also look for cultural differences

e. Need to probe client for interest in a dispute resolution process

f. Sometimes clients substantive interest overlaps with his interest in a process

B. Communication Skills:

a. Establish Setting: many effect the dynamic – where it is going to be; what it is going to be like

i. Positive Physical environment

ii. Neutral setting

iii. Where they sit: size of the table – this effects how people perceive things

iv. Food and drinks

b. Develop Rapport: humanize yourself and your client; you want to get to know each other to build some trust in the process

c. Attentive and Proactive Listening

i. You want to be a good listener

ii. Effective Listening:

1. What distractions can impede your listening?

2. May be dismissive because you have heard it all

3. Tone of the way they are speaking- this info should be looked into further and find out why their tone is what it is

4. Maybe other things you are thinking about besides listening to the negotiations

iii. Active Listening:

1. Listen for Purpose

a. It will not be listed need to listen for it

b. Listen for their impediments and what heir interests are

2. Listen for more than words

a. Body language is 55% of info and tone is 38% – communication of feelings and attitudes

3. Consider Context

a. Context can convey nuances of meaning

4. Guard against False assumptions

a. Guard against hearing what you want to hear

d. Perception

i. Need to look for all details can’t just listen o what you want to hear need to pay attention to everything

ii. As opposed to court where you need to persuade the judge here you need to persuade the other side

1. Need to build a resolution – need to work at it and be aware of it

iii. We experience similar or selective data

1. We interpret the data – through neutral approach

2. We reach assumption/conclusion based on those interpretations

3. How you overcome is by looking from neutral lenses