Mediation Representation: Advocating in a Problem-Solving Process

Recipient of 2004 Book Award of the CPR Institute for Dispute Resolution.

Surprisingly little has been written on how to represent clients in mediation as a problem-solving forum. In this groundbreaking book, Hal Abramson offers a bold, new methodology for problem-solving advocacy—the skills that lawyers are most likely to need in their legal practice.

During mediation, Abramson says, 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 six key junctures in the mediation process.

This mediation formula, Abramson points out, provides a framework for answering such persistent mediation representation questions as: What types of cases are suitable for mediation? How do you approach the other attorney about using mediation without looking weak or desperate? How do you prepare your case and client for mediation?

Abramson begins by discussing how to be an effective negotiator. Mediation, he reminds us, is simply a continuation of the ongoing negotiation. He then explores the mediation process from the vantage point of an advocate, focusing on the different stages of mediation, the function of opening statements, the use of joint sessions and caucuses, and the various approaches and techniques of mediators. The next five chapters cover the knowledge and skills needed to effectively perform four specific roles in mediation representation: advising your clients about the mediation option, negotiating an agreement to mediate with other attorneys, preparing cases and clients for the mediation session, and appearing in the pre-mediation conferences, mediation sessions, and post-sessions. The final chapter presents alternative processes for resolving any remaining issues in the event that the mediation does not result in settling all the issues.

The book is filled with handy checklists and appendices including samples of a briefing paper, opening statements, agreements to mediate, a confidentiality agreement, mediation rules, and a detailed explanation of how to use decision trees.

Harold I. Abramson is a Professor of Law at Touro Law Center in Huntington, New York. He has published extensively, lectured widely, and conducted numerous training programs on mediation plus domestic and international negotiations, public policy negotiations, alternative methods of resolving disputes, as well as representing clients in meditations. He can be reached at Hala@tourolaw.edu.