Home > PROBLEM-SOLVING ADVOCACY IN MEDIATIONS: A MODEL OF CLIENT REPRESENTATION
PROBLEM-SOLVING
ADVOCACY IN MEDIATIONS: A MODEL OF CLIENT REPRESENTATION10
Harvard Negotiation Law Review 103 (2005)
Harold Abramson [FNd1]
The Problem: Adversarial Advocacy
…
The sort
of advocacy caricatured in the negotiation session of the movie Erin
Brockovich [FN19] has not been uncommon in mediations.
Let me describe the sharp exchange of settlement offers in that negotiation.
During the rest of this article, this dispute [FN20] will be used as a basis for demonstrating
the elements of a formula suitable for representing clients in a problem-solving
process.
Here
is the scene and the transcript:
The judge just dismissed each of the eighty-four motions to strike filed by the defendant and upheld the plaintiffs' causes of action in a lawsuit brought by the residents of Hinkley, who claimed that the defendant Pacific Gas and Electric [PG&E] had polluted their groundwater. The judge directed the defendant's attorneys to “tell your clients they're going to trial.” As a result, the attorneys for both sides agreed to meet at the law office of the plaintiffs' attorney to discuss settling the lawsuit.
Scene:
The Waiting Room.
Ed Masry,
the attorney Erin Brockovich works for, glances at the defendants' attorneys
who “ooze importance” and whispers to Ms. Brockovich, “The games
are about to begin.” Mr. Masry recruits and dresses up two of his
secretaries to look like attorneys.
Next
Scene: The Conference Room.
The four
of them, including Ms. Brockovich, walk into the conference room and
sit down. Across the table, two attorneys representing the defendant
are already seated.
The lead
attorney for defendant Pacific Gas and Electric talks first and presents
an opening offer:
SANCHEZ
(PG&E lead attorney): . . . Let's be honest here. Twenty million
dollars is more money than these people have ever dreamed of.
ERIN:
Oh, see, now that pisses me off. First of all - since the demur, we now
have more than four hundred plaintiffs . . . . and (mocking her) “let's
be honest,” we all know there's more out there. Now, they may not
be the most sophisticated people, but they do know how to divide, and
twenty million dollars isn't shit when it's split between them.
*112
And second of all - these people don't dream about being rich. They
dream about being able to watch their kids swim in a pool without worrying
they'll have to have a hysterectomy at age twenty, like Rosa Diaz -
a client of ours - or to have their spine deteriorate like Stan Bloom
- another client of ours.
So before
you come back here with another lame-ass offer, I want you to think
real hard about what your spine is worth, Mr. Buda [one of PG&E's
attorneys] - or what you'd expect someone to pay you for your uterus,
Miss Sanchez [the other PG&E attorney] - then you take out your
calculator and multiply that number by a hundred. Anything less than
that is a waste of our time.
[Sanchez,
throughout her speech, has been reacting in a patronizing manner - as
if Erin's words were of no import. As Sanchez picks up a glass of water
to sip,]
ERIN:
By the way, we had the water brought in special for you folks. It came
from one of Hinkley's water wells.
SANCHEZ
stares at the water and puts it down and says: I think this meeting
is over.
ED responds
with: Damn right it is.
[Erin
gets up and storms out first.]
This
sort of intensive, adversarial posturing can damage, if not derail,
a problem-solving process, whether conducted with or without a mediator. Mediation
advocates who prefer a problem-solving process need a more suitable
approach to client representation.
V. Solution:
The Mediation Representation Formula
Mediation
Representation presents a five component mediation representation formula
in which attorneys advocate by using (1) a creative problem-solving
approach to achieve the two goals of (2) satisfying their client's interests
and (3) overcoming any impediments to settlement. During the mediation
the attorneys (4) enlist the assistance of the mediator while negotiating
with the other side at (5) key junctures in the process.
The first
three components of the model focus primarily on how to negotiate in
the mediation.
A. Negotiation
Approach: Creative Problem-Solving
Selecting
the negotiation approach was easy. If an advocate views mediation as
a problem-solving process, then the attorney should negotiate as a problem-solver.
*113
A problem-solving negotiator who is creative [FN21] does more than just try to settle
the dispute. Such a negotiator creatively searches for solutions that
go beyond the traditional ones based on rights, obligations, and precedent.
Rather than settling for win-lose outcomes, the negotiator searches
for solutions that can benefit both sides. [FN22] To creatively problem solve, the negotiator
develops a collaborative relationship with the other side and participates
throughout the process in a way that is likely to result in solutions
that are enduring as well as inventive. Solutions are likely to be enduring
because both sides work together to fashion nuanced solutions that each
side fully understands, can live with, and knows how to implement. Solutions
are likely to be inventives because both sides advocate for their client's
interests instead of legal positions; [FN23] use suitable techniques for overcoming
impediments; search expansively for multiple options; and evaluate and
package options imaginatively to meet the various interests of all parties.
*114
For problem-solving advocacy to be effective, an attorney ought to engage
proactively at every stage of representation, from the moment of the
first client interview until the negotiation in the mediation is concluded.
The attorney should be a constant problem solver. It is relatively easy
to engage in simple moves such as responding to a demand with the question
“why?” in order to bring the other party's interests to the surface.
However, it is much more difficult to stick to this approach throughout
the mediation process, especially when faced with an adversarial, positional
opponent. Trust the problem-solving approach. When the other side engages
in adversarial tactics - a frequent occurrence in practice - the attorney
should react with problem-solving responses, responses that might even
convert the other side into a problem solver. [FN24]
In this pitch for a problem-solving approach, I do not blindly claim
that it is the only one that results in settlements. Attorneys frequently
cite success stories when they use unvarnished adversarial tactics,
as occurred in Erin Brockovich, or a hybrid of adversarial and problem-solving
strategies. [FN25] The hybrid supporters claim that the
best approach is a flexible one, a philosophy that surely is advisable
in life generally as well as in legal negotiations. However, flexibility
should not be confused with inconsistency. Shifting between adversarial
and problem-solving tactics during the course of mediation can undercut
creative problem-solving potential. A consistent adherence to problem-solving
will more likely produce the best results for clients.
Finally,
this pitch for problem-solving is bound to be resisted by those who
fail to see any benefits for the legal cases that they typically handle. These
skeptics see problem-solving opportunities for other attorneys' cases
but not for their own because their cases are only about money. This
common reaction reflects a misunderstanding of the opportunities offered
by problem-solving.
First,
whether a legal dispute is mostly about money varies from case to case. [FN26] An attorney has little chance of discovering
whether a *115 dispute is about more than money if the attorney
approaches the dispute as if it is only about money. [FN27] Such a preconceived view backed by
a narrowly focused adversarial strategy will likely blind the attorney
to the other party's needs and inventive solutions. Both sides are more
likely to discover comprehensive and creative solutions if they approach
the dispute with open minds and problem-solving orientations.
Second,
if the dispute or any remaining issues turn out to be predominantly
about money, then at least the attorney followed a representation approach
that may have created a hospitable environment for resolving the money
issues. A hospitable environment can even be beneficial when there is
no expectation of a continuing relationship between the disputing parties.
Third,
the problem-solving approach can provide a framework for resolving money
issues. This type of dispute can sometimes be resolved by resorting to
the usual problem-solving initiatives such as the use of objective criteria. [FN28] If they fail, an attorney might turn
to the familiar, adversarial negotiation dance of offers and counter-offers,
but a version that has been tempered for a problem-solving process. [FN29]
In short, problem-solving provides a comprehensive and coherent structure
for representation that can guide an attorney throughout the negotiation
in the mediation. By sticking to this approach, the attorney will be
prepared to deal with the myriad of unanticipated challenges that inevitably
arise as any negotiation unfolds.
*116
Despite these benefits, lawyers gravitate toward an adversarial approach.
The reason may seem simplistic, if not superficially glib: lawyers are
too preoccupied with litigating. Negotiations are so enmeshed in the
litigation process that negotiations and litigation have become an integrated,
single process of dispute resolution. [FN30] Thus, lawyers are likely to approach
the negotiated settlement of a court case with a litigator's mindset, [FN31] one molded by an intensely adversarial
legal culture and reinforced by attorney fee arrangements.
Many
lawyers relish and many clients crave a fiercely combative approach
to legal representation. Overly optimistic as well as insecure clients
want to be protected by aggressive hired guns. They are not very receptive
to reality checks and can become perturbed with lawyers who may not
appear faithful to the cause when they flag legal risks and inquire
about the other side's perspective and needs.
Legal
training and experience teach lawyers to view legal disputes as zero-sum
or distributive conflicts about money in which one party wins and the
other one loses. The very function of courts is to declare winners and
losers. Also, courts prefer awarding the winners monetary awards over
such equitable relief as specific performance and inventive injunctions. Compelled
by the well-established maxim that “equitable relief is not available
to one who has an adequate remedy at law,” courts prefer awarding
damages, reserving creative equitable relief for when legal remedies
prove inadequate. Before awarding most forms of non-monetary relief,
counsel must convince the court that his or her client would otherwise
suffer irreparable harm and that the equitable relief would be practical,
convenient, and not sap judicial resources. [FN32]
The litigator's mindset is also molded by the only too familiar routine
for pursuing litigation. First, a litigator's conception of a dispute
is shaped by the way he or she converts the dispute into a legal case. When
drafting a complaint or answer, the attorney sculpts and fits the dispute
into recognized legal categories and then reinforces this conception
of the dispute with supporting partisan arguments. The attorney next engages
in various strategies to bolster the legal case because the perceived
likely court outcome will impact on the settlement value of the case. In
addition to using old-fashioned puffery and bluffing, the attorney typically
turns to various litigation strategies. By pursuing more discovery or
a motion for summary *117 judgment, for instance, the attorney
pursues the chance that more disclosure or a successful motion will
strengthen the court case and its settlement value. The attorney may
further press the other party to settle by resorting to litigation strategies
that increase the other party's cost of staying in the litigation. By
demanding voluminous discovery, for example, the attorney can purposely
increase the other party's costs of not settling. As the attorneys and
parties become consumed by these litigation tactics, the litigation
and related negotiation become sharply adversarial.
The fee
arrangements between attorneys and their clients, which can encourage
unethical professional conduct, can fuel these litigation strategies. Obviously,
an hourly rate arrangement can motivate less ethical attorneys to engage
in adversarial strategies that prolong the litigation. It takes only
one unethical attorney with the hourly rate incentive to prolong the
litigation. Even though the alternative of a contingency fee arrangement
may motivate early settlement (by working fewer hours, the attorney
can make more money), it can discourage problem-solving searches for
value-creating trades. A settlement that includes a new car or an apology
instead of monetary damages, for instance, produces a settlement that
cannot be neatly split so that the attorney receives one-third.
In short,
when the litigator's mindset is adapted to legal negotiations, the approach
is bound to be adversarial. [FN33] This adversarial approach has been
long-standing, despite the finding of at least one prominent study that
lawyers would prefer problem-solving strategies. [FN34] A study of New Jersey litigators suggested
that lawyers may negotiate adversarially out of habit, a social practice
that is less costly and more easily routinized than problem-solving. [FN35]
The negotiation in Erin Brockovich surely exemplified the classic adversarial
approach. It consisted of the exchange of extreme offers and counter-offers
backed by muscular language. After the defendant's attorney characterized
her offer as “more money than these *118 people have ever dreamed
of,” Erin Brockovich responded by scorning the defendant's offer,
conveying passionately and vividly her clients' dreams, presenting an
extreme and provocative counter-offer, and wrapping up her response
with the unsettling water ploy that pointedly raised the health issue.
The result of this series of moves was predictable, at least for that
negotiation session: an impasse. However, could Ms. Brockovich have
been an assertive advocate in a way that would not have sent the other
side away? I will suggest how she might have advocated differently,
in a way that might have transformed the negotiation into problem solving,
as I explore the next four components of the representation model.
B. Goal: Advance
Your Client's Interests
For the
next step in constructing this model, I wanted to fashion a guiding
light for the negotiation. Any light should focus client representation
on one overall goal within a problem-solving framework. I sought a goal
that would isolate a key trigger for launching a problem-solving process. The
obvious goal was to settle the dispute. [FN36] However, settlement as a goal did
not shed much light. It is the goal of most negotiations, whether the
parties are adversarial or problem-solving. Also, the goal failed to
shape how parties and attorneys negotiate. I needed another goal.
For the
goal to be effective it had to take into account the litigator's embedded
view of negotiations as a win-lose proposition; it had to be able to
shift the litigator's perspective. After reflecting on a full range of
techniques and moves within the self-contained problem-solving approach,
one single move stood out because it could instantly shift a negotiator's
perspective on a dispute from an adversarial distributive one to a problem-solving
mutually beneficial one. This shift can happen when the attorney identifies
and advocates his or her client's interests. More specifically, an attorney
should first understand his or her client's interests, acquire an understanding
of the other side's interests, and then advocate to advance his or her
client's interests in a way that sufficiently addresses the other side's
interests to move toward an agreement. This focus should be the primary
goal in a problem-solving process, a first move that can initiate problem-*119
solving as well as serve as a guiding light throughout the negotiation
in the mediation. [FN37]
In Erin Brockovich, Ms. Brockovich could have shifted the negotiation
from adversarial to problem-solving by focusing on the interests of
both sides. Interests reflect parties' needs. The positions that attorneys
typically advocate are solutions. In Erin Brockovich, the defendant offered
twenty million dollars; the plaintiffs counter-offered with a hundred
times the value of a spine or uterus. These monetary solutions were offered
to meet each side's interests. However, there might have been other solutions. By
switching the beginning of the negotiation from exchanging initial offers
to exchanging information on the needs of each party, an attorney can
open the door to a search for creative solutions. It is the first step
in a problem-solving negotiation.
In Erin
Brockovich, consider what might have been the interests of each side
and how identifying them would have opened the way to multiple possible
solutions. The interests of the ill and scared plaintiffs became clear
as the story in the movie unfolded. They wanted recognition that they
had been poorly treated and lied to by the defendant; they wanted to
be treated with respect and dignity; and they desperately needed health
care and a safe place to live for themselves and their families. In view
of these interests, solutions other than or including the payment of
a lump sum might have included receiving lifetime health insurance,
buying out their homes, cleaning up the contaminated groundwater, and/or
a public and sincere apology.
For the
defendant, PG&E, what were its underlying interests? The company
might have wanted to avoid bad publicity and financial distress, if
not bankruptcy. In view of these interests, other possible solutions
might have included burnishing its reputation as a responsible corporate
citizen by cleaning up the site, securing government help with the cleanup,
or offering health insurance to the residents, which might be cheaper
than paying a single lump sum payment.
There
is a second reason for selecting the goal of focusing on a client's interests:
to make clear what is not the primary goal of problem-solving. Problem-solving
is sometimes misconstrued to mean placing a premium on getting along
with the other side at the expense of a client's interests. Correcting
this false perception registered high when drafting the new assessment
criteria for the ABA *120 Mediation Representation Competition. [FN38] We had heard numerous competition
judges criticize students' advocacy as too cooperative at the expense
of their clients' needs. We resolved to send an unmistakable message
to students by adding a separate and specific judging criterion entitled
“Advocating Client's Interests.” [FN39]
For these reasons, this explicit goal was added to the model: attorneys
should advocate to advance their clients' interests.
C. Goal: Overcome
Impediments
I also
identified another primary goal, one that applies to any negotiation
regardless of the objective: to overcome any impediments to settlement. This
goal entailed a return to a basic premise: parties would not be in mediation
unless they were facing an impediment in the negotiation; otherwise,
the parties could probably settle the dispute without the assistance
of a mediator. Selecting this goal was obvious. Less obvious, however,
was identifying an impasse-breaking strategy that comported with a problem-solving
approach.
A number
of distinguished authors have devised methodologies that demystify the
murky world of impasse-breaking. [FN40] The methodology developed by Dr. Christopher
Moore, [FN41] for instance, relies on *121
taking three discrete steps that can produce a tailored-made strategy
for overcoming impasses. His approach is built around his critical observation
that impasses can be divided into five conflict categories that he labels
relationship, data, value, interest, and structural. Under his approach,
you first inquire about the cause of the impasse; then you classify
the cause into one of the five impasse categories; and finally, you
devise a suitable intervention for overcoming the impasse.
Let me
describe Moore's five impasse categories while leaving for the next
section how advocates might use his classification system as a basis
for enlisting assistance from the mediator.
Relationship
Conflicts can arise when participants are deeply upset with each other,
cling to destructive misperceptions or stereotypes of each other, or
suffer from poor communication. These types of conflicts are common in
disputes where parties distrust each other and are occupied with hurling
threats. These disabling tensions can arise between clients, between
attorneys, and between an attorney and his or her client. Clearly, a
bad relationship between the attorneys in Erin Brockovich contributed
to that failed negotiation.
Data
Conflicts can be caused by inadequate, inaccurate, or untrustworthy
information. Alternatively, they can be caused by different views of
what is relevant information or different interpretations of relevant
data. Data conflicts are common in court cases where parties may hold
conflicting views of what happened, what might happen in court, or what
is an appropriate interpretation of decisive data such as financial
statements.
A common
data conflict in legal disputes arises from conflicting views of how
a court will likely rule. Too many lawyers and clients fail to thoroughly
and objectively analyze all the benefits, costs, and risks of pursuing
a judicial remedy. This common failure leads to poor legal advice to
clients, unrealistically optimistic alternatives to settlement (unrealistic
BATNAs), and impasses in negotiations and mediations. Virtually all mediators
have seen cases where opposing attorneys were equally optimistic about
the judicial outcome. One of the attorneys was proven wrong. Inflated
assessments can lead clients astray because they overestimate the benefits
of returning to court, and, as a result, they may mistakenly reject
what otherwise might have been acceptable settlement proposals.
A data
conflict posed one of the impasses blocking settlement in Erin Brockovich. The
sides could not agree that the town's water was polluted by the defendant,
PG&E. The water ploy during the negotiation sharply raised the safety
issue in a provocative, confrontational *122 fashion. [FN42] Ms. Brockovich could have made the
same point differently. She could have asked the other side whether
they would be willing to drink this glass of water from a Hinkley well.
Then she might have stated, while holding the glass of water, that she
would not want to drink the water until the people at this table could
resolve whether the water was safe (the data conflict). These comments
would have directed the discussion to the cause of the impasse and how
to garner the information each side would need to assess the safety
of the water and, if unsafe, the causation. This plan would have kept
both sides engaged specifically in examining ways to overcome the impediment.
Interest
Conflicts can arise when parties' substantive, procedural, or psychological/relationship
wants conflict with each other. [FN43] Interest conflicts cover the classically
positional conflict inherent in adversarial negotiations. They can be
caused by parties wanting the same thing (such as property), wanting
different amounts of the same thing (such as time), wanting different
things that the other is not prepared to give (such as one party wanting
a precedent that the other party opposes), or even wanting something
that another is not even aware of (such as an acknowledgment or an apology).
The Erin Brockovich negotiation presented the classic distributive conflict
over money - the plaintiffs wanted more money than the defendant was
willing to pay.
Structural
Conflicts can be the murkiest to identify. The two most common, as well
as easiest structural obstacles to spot, are impasses due to unequal
bargaining power or impasses due to conflicting goals of attorneys and
their clients, which are known as principal-agent conflicts. Other structural
conflicts can be more subtle, such as those caused by no deadline, time
constraints facing one side, a missing key party, a party without sufficient
settlement authority, geographical or technological limitations that
impact one side disproportionately, and unequal control of resources
for resolving the conflict. Because the causes of structural conflicts
also frequently *123 contribute to relationship conflicts, it
can be difficult to decipher the nature of the conflict. In Erin Brockovich,
a structural conflict that contributed to a relationship conflict between
the attorneys across the table might have impeded a settlement. A large
utility company that thought that it had all the power despite losing
a vital motion resented being forced to defend itself against the allegations
of uneducated, poor people who were represented by an under-funded and
inexperienced attorney.
Value
Conflicts can be the most intractable ones because they implicate a
party's core personal or moral values. This narrow category can embrace
matters of principle, ideology, or religion that can not be compromised. A
grassroots environmental group, for instance, may have difficulty settling
with a housing developer because to do so might compromise the group's
ideology of preserving all large tracts of open space.
Value
conflicts can be difficult to recognize in court cases, because values
can be masked by all too familiar legal categories, arguments, and remedies. When
a party wants to win in court, for example, the party may be motivated
by the need for a clear victory to preserve a personal value, such as
personal integrity.
For the
last two components of the mediation representation formula, I turned
to examining the mediation process itself. This subject is mediation
representation. But how does mediation fit in? The last two components
cover how to enlist assistance from the mediator and how to negotiate
at key junctures in the process.
D. Strategy:
Enlist the Assistance of the Mediator
For this
next component, I needed to consider the types of assistance that can
be offered by the third party in the room, the mediator. The mediator
can contribute in three general ways: by the way the mediator implements
his or her orientations, uses his or her techniques, and controls the
mediation stages. The particular contributions depend on the type of
mediation process envisioned. In a problem-solving process in which the
advocate does not scheme to manipulate or “game” the mediator, the
third party can be enlisted in the various ways described in this section.
1. Mediators'
Orientations
Mediators
bring a mix of distinct orientations to the mediation process. They can
be grouped into four discrete areas: (1) How will *124 the mediator
manage the mediation process? Will he or she be primarily problem-solving,
evaluative, or transformative? (2) Will the mediator approach the problem
narrowly as primarily a legal dispute or more broadly? (3) Will the
mediator involve clients actively or restrictively? (4) Will the mediator
use caucuses extensively, selectively, or not at all? When an advocate
knows the mediator's mix, then he or she knows some of the opportunities
for enlisting the mediator for assistance.
Assuming
that the dispute in Erin Brockovich is now in mediation, Ms. Brockovich
might decide that it would be helpful for her clients to personally
and passionately convey their fears and suffering to the other side. It
became clear after the negotiation session that the plaintiffs needed
some version of a “day in court” and that the defendant did not
fully understand the plaintiffs' anguish. Knowing that the mediator
conducts most of the mediation in joint sessions, Ms. Brockovich would
prepare her client to talk to the other side, reaffirm her preference
to minimize the use of caucuses, and be prepared to object politely
if the mediator prematurely moves toward a caucus.
The mediator's
orientation should be especially highlighted, because it can singularly
shape an attorney's representation strategy. An attorney's entire approach
to interacting with and enlisting assistance from the mediator will
be influenced by the mediator's process management, that is, how problem-solving,
transformative, or evaluative the mediator might be. [FN44]
For example, realizing that the mediator will stay in a problem-solving
mode gives an attorney the freedom and security to share information
(including interests), brainstorm options, recognize weaknesses in his
or her client's legal case, and remain open to creative solutions other
than the ones in the legal papers. The attorney can feel comfortable
asking the mediator for help in sorting out interests, facilitating
an evaluation of the legal case, or developing multiple options. The
attorney also has much freedom and security with a transformative mediator
who is trained to support whatever sort of process is structured and
implemented by the attorney, client, and the other side. However, the
attorney cannot rely on the transformative mediator's expertise or initiatives
to create or direct a process, as the transformative mediator is committed
to being non-directive.
In contrast,
consider the impact of mediator evaluation on advocacy. Whenever an attorney
approaches me about this topic, I ask *125 the same simple question:
does knowing that the mediator might offer an evaluation influence how
you would represent your client in mediation? The answer is “yes”
every time.
Mediation
evaluations can take a variety of forms. For instance, mediators may
assess the reasonableness of settlement options, assess consequences
of not settling, or recommend settlement proposals either as the mediation
unfolds or as a “mediator's proposal.”
Knowing
that the mediator may formulate one or more of these types of evaluations
can induce the attorney to approach the mediation more like an adjudicatory
process than a negotiation. This mediator role can change the nature
of the mediation process. Instead of viewing the mediator as a facilitator
with whom the attorney can have candid conversations, the attorney is
likely to view the mediator as a decision-maker who must be persuaded. Instead
of formulating a negotiation strategy based on meeting parties' interests,
the attorney is likely to formulate a strategy designed to convince
the mediator to recommend a favorable evaluation.
Consider
in what specific ways an attorney would circumscribe his or her representation
if the attorney thought the mediator might evaluate. Would the attorney
and his or her client talk less candidly if the attorney were to take
into account the possibility of the mediator performing any of these
other roles? Would the attorney avoid recognizing any weaknesses in his
or her legal position, other than the safely obvious ones, to the mediator
or the other side? Would the attorney eschew compromises, especially
ones that deviate from the remedies sought in the legal case? Would the
attorney hide and disguise information in order to avoid coloring unfavorably
the mediator's view of the dispute? Would the attorney be likely to advance
partisan legal arguments at the expense of interest-based creative option
building? [FN45]
Affirmative answers to these questions prompt many attorneys to return
to the traditional adversarial approach so familiar in the courtroom,
in which the attorney withholds unfavorable information, hides any flexibility
to avoid implying a lack of confidence in the legal *126 case,
and presents carefully crafted partisan arguments and positions that
are designed to persuade a decision maker to act favorably.
Alternatively,
an attorney might problem-solve but do so in a selective way that reduces
the risk of an unfavorable assessment by the mediator. In such a constricted
problem-solving approach, an attorney could still share and advocate
his or her client's interests and engage in such problem-solving moves
as brainstorming options and designing creative solutions, but only
up to a point. The attorney will avoid sharing information or showing
flexibility that may risk a less favorable evaluation from the mediator.
This
strategic behavior can dilute the potential of a problem-solving process
by limiting the ability of parties to uncover optimal solutions. Withholding
information may hide important matters relevant to devising solutions. Hiding
flexibility may cramp the search for imaginative solutions.
I have
seen firsthand how attorneys and clients withhold unfavorable information
and flexibility. In one instance, after three days of arbitration hearings,
the parties agreed to convert the proceeding into a final-offer arbitration
process in which each side would submit a final offer, and I would select
one. The final offers barely resembled what each side had advocated during
the hearings. While this anecdote is surely not surprising because an
advocate would never be expected to reveal acceptable settlement terms during
an adversarial hearing, it illustrates the point that should be as obvious
as what happened in the anecdote: there is a tendency to hide flexibility
in an evaluative/adjudicatory process. This point was further illustrated
in a recent case where I was operating as a mediator who might evaluate. After
four hours of mediating and then reaching an impasse, both sides selected
the mediator's proposal scheme where I would formulate a proposal that
each side would either accept or reject, without advising the other
side unless both sides accepted. The party that took the most inflexible
position in the mediation and tenaciously hid any hint of legal vulnerability
accepted a mediator's proposal that was one-third of that side's uncompromising
position in the mediation.
Consider
what might have been the impact on the parties in Erin Brockovich if
the case had gone to a mediator who might evaluate. PG&E would likely
be reluctant to disclose its interest in avoiding bad publicity, because
this information might be exploited by the mediator. The mediator might
attach a financial value to a confidential settlement and then add the
value to a recommended payment by *127 PG&E. Disclosing that
interest, however, might lead the parties to devise other beneficial
solutions.
The utility
company would likely be restrained when brainstorming for creative solutions,
because it may want to avoid revealing too much flexibility. It may not
want to imply that it would be willing to accept something qualitatively
or quantitatively less than what it is seeking in court. So, even though
the utility company might find it desirable to devise solutions that
would avoid negative publicity, for instance, it may not want any appearance
of flexibility to influence the mediator when formulating any evaluations
or settlement proposals.
In view
of this strategic need to hide information and flexibility, an attorney
may be induced to fashion this constricted form of problem-solving advocacy,
one that is based on a narrowly focused adversarial plan and presentation. Such
an approach would require a sophisticated and nuanced form of advocacy
in order to minimize stifling the creative problem-solving potential
of the mediation process. The advocacy would consist of a blended problem-solving-adversarial
strategy that could not be implemented casually because of the need to
carefully identify and segregate risky information from safe information
and then to artfully and persuasively disclose only the safe information. It
is a strategy that would need to be actuated proficiently in the heat
of the mediation, realizing that too much candor might result in a less
favorable mediator assessment and too little candor might result in
a less optimal negotiated result.
An attorney
might be more confident pursuing a constricted problem-solving approach
if the type of carefully designed safeguard in the Centre for Effective
Dispute Resolution (CEDR) Mediation Rules [FN46] was adopted. The rules ensure that
all participants approve an evaluation role at the optimum moment in
the process as well as limit the type of evaluation. The rules give
the mediator conditional recommendation authority:
If the Parties are unable to reach a settlement in the negotiations at the Mediation, and only if all the Parties so request and the Mediator agrees, the Mediator will produce for the Parties a non-binding recommendation on terms of settlement. This will not attempt to anticipate what a court might order but will set *128 out what the Mediator suggests are appropriate settlement terms in all of the circumstances. (emphasis added) [FN47]
CEDR's Guidance Notes state that
“The intention of paragraph 12 is that the Mediator will cease to play an entirely facilitative role only if the negotiations in the Mediation are deadlocked. Giving a settlement recommendation may be perceived by a Party as undermining the Mediator's neutrality and for this reason the Mediator may not agree to this course of action.” [FN48]
2. Mediators' Techniques
Basic
mediation training emphasizes learning and honing a set of widely used
techniques, such as promoting communication through questioning and
listening methods, dealing with emotional dimensions of disputes, overcoming
impediments including money impasses, helping parties assess their BATNAs,
and generating creative options, among other valuable skills. An advocate
can solicit the mediator to use any of these techniques at propitious
moments in the mediation process.
For example,
an advocate might suggest to a mediator that one of the obstacles to
settlement is a relationship conflict between the parties. Then the attorney
might ask the mediator to assist the parties in implementing a suitable
intervention. The mediator might help the parties constructively explain
to each other why they are upset, assist them in clarifying their perceptions
of each other, focus on other ways to improve their communications,
and cultivate their problem-solving attitudes.
For a
data impasse, an advocate might ask the mediator to help the parties
resolve what data are important, negotiate a process for *129
collecting reliable data, or develop common criteria that can be used
to assess the data.
When
a data conflict is over (the likely judicial outcome) instead of asking
the mediator to give a prediction (an evaluation) - a request that would
likely compromise the problem-solving process [FN49] - the attorney can ask the mediator
to help each side further analyze the legal case. The attorney might
ask the mediator to guide the participants in calculating the value
of each client's total BATNA by using a decision-tree plus methodology. [FN50] A client's total BATNA can be divided
into two distinct components, public and personal, and a value for each
component can be separately calculated.
The public
BATNA covers the portion that the attorney is qualified to calculate. The
attorney has the expertise to predict the likely judicial outcome, the
probability of success, and the likely legal fees and court costs the
client will incur. Attorneys frequently make these predictions in their
law practices. Based on discovery, legal research, and experience - information
that is mostly available to both sides - attorneys routinely estimate
these key inputs that are used when employing decision trees for calculating
the value of the public BATNA. In Erin Brockovich, the judge's ruling
denying the defendant's motions surely gave both sides further insight
into one key input, the probability of success in court. In addition,
as Ms. Brockovich gathered more damaging evidence after the failed negotiations,
the plaintiffs' probability of success continued to increase.
The other
component, the personal BATNA, addresses the portion that the client
is uniquely qualified to calculate. It is the component idiosyncratic
to the client. For example, the client can best assess the added value
of going to court to establish a judicial precedent or to be vindicated. The
client can best approximate the added cost of possibly destroying a
continuing relationship with the other party by going to court. The client
is the expert. Only the client can quantify his or her own subjective
views of these additional litigation benefits and costs. This will not
be easy for the client to do. Instead *130 of inviting the client
to use a formal decision tree, [FN51] the attorney can take the simpler
yet still demanding approach of asking him or her some probing questions.
This supplement to decision trees is the plus analysis. For example,
the attorney might ask the client - a plaintiff, for instance - to confront
and resolve how much less money he would be willing to accept to settle
now and not suffer the risks of waiting out the litigation or suffer
the risks of destroying a relationship in the litigation. In other words,
how much money would the client be willing to sacrifice for the benefit
of settling now?
Factoring
in the plaintiffs' personal BATNA weighed heavily in Erin Brockovich
when the plaintiffs began to abandon their attorneys after the attorneys
recommended the use of arbitration. Only after one of their attorneys,
Ed Masry, highlighted the personal costs of waiting for any money until
trial (the negative personal costs of their BATNA) did the plaintiffs
reluctantly accept what they viewed as the faster but less satisfactory
forum of arbitration that lacked a jury and right to appeal.
The value
of the client's total BATNA is simply the sum of the values of his or
her public and personal BATNAs, a critical benchmark when weighing whether
to settle or continue litigating.
When
encountering an interests conflict, the advocate may ask the mediator
to help the parties pinpoint shared or non-conflicting wants, identify
objective criteria for overcoming conflicting wants, and search for
increase value and productive trades. Court cases typically present conflicting
substantive wants because of the nature of the litigation process in
which plaintiffs' attorneys draft complaints bursting with demands and
defendants' attorneys draft answers rejecting almost everything.
When
the interests conflict is the classically distributive one over money,
the sort of dispute that may appear unresponsive to the problem-solving
methods considered in this article, the advocate might consider an approach
that avoids the traditional negotiation dance of offers and counter-offers. The
advocate might select a method designed to prevent the error of failing
to settle due to not revealing the information that would have shown
that the parties were within a settlement range. The advocate might ask
the mediator to use a scheme that can provide a safe pathway for parties
to move toward their bottom lines. Six such schemes are described and
analyzed in *131 Mediation Representation. They are: binding
final-offer arbitration, a mediator's proposal, hypothetical testing,
confidential disclosure of bottom lines, confidential disclosure of
settlement numbers, and a safety deposit box. [FN52]
A structural impasse in an attorney-client conflict can arise due to
the inherent structure of the relationship, a bad relationship between
the attorney and client, or both. A perceptive advocate might solicit
the mediator to help the other side overcome an attorney-client conflict. If
it has arisen because the other attorney thinks his or her client should
settle while his or her client wants to pursue the litigation, for instance,
the mediator can facilitate a discussion of the different views and
ways to bridge possible differences.
When
an advocate recognizes that parties' personal values may be implicated
in the impasse, he or she may enlist the mediator for help by suggesting
the nature of the impasse. Then, the mediator might assist the parties
in clarifying their core values to find out whether their values are
truly at stake or truly in conflict. If in conflict, the mediator may
try to help the parties work around their personal values because compromise
is usually unacceptable. The mediator can help parties search for an
overarching shared goal, ways to avoid defining the problem in terms
of a particular value, or solutions that do not compromise the value. Or
the mediator might assist parties in reaching an agreement to disagree.
Returning
to Erin Brockovich, Ms. Brockovich, sensing a relationship conflict
due to poor communications in that PG&E did not understand her clients'
interests and perspective, might ask the mediator to help improve the
communications between the parties. In making this request, the parties
can benefit from the mediator's training in posing questions, active
listening, and reframing what is being said.
3. Mediators'
Control of the Mediation Stages
A problem-solving
process follows somewhat predictable stages from beginning to end. The
process stages can include the opening statement of the mediator; gathering
information (opening statements of parties and attorneys, discussions
in joint sessions and caucuses); identifying issues, interests, and
impediments; overcoming impediments; generating options (inventing);
assessing and selecting *132 options; and concluding (agreement
or impasse). [FN53] Knowing that a mediator exercises
control over these stages gives the advocate other ways to enlist the
mediator's assistance. The advocate can request that the mediator use
various stages in ways that may advance a client's interests or overcome
any impasses.
Frustrated
that she can not secure critical data, for instance, Erin Brockovich
could plan to raise this data impasse when the mediator reaches the
stage of identifying impediments to settlement. Realizing that Pacific
Gas & Electric is approaching the dispute as distributive, as if
the dispute is only about paying a lump sum of money, Erin Brockovich
could plan to invite the mediator to help the parties generate multiple
options when the inventing stage is reached.
At the
end of the two-credit mediation representation course at Cardozo Law
School in January 2004, I asked the five experienced professional mediators
who conducted the end-of-the-course mock mediations whether any of them
reacted to the student-attorneys suggesting how they could be helpful
in resolving the dispute. The mediators uniformly expressed both that
they were surprised, because it was so rare, and how helpful it was
to hear the student-attorneys' analyses and suggestions.
E. Implement
Plan At Key Junctures in the Mediation Process
Finally,
these four distinct components of the model had to be woven together. I
had to consider how a problem-solving approach that involves the analysis
of interests, impediments, and ways to enlist the mediator's assistance
can be implemented by an advocate in the mediation process. The advocate
needed a representation plan that could be used throughout the mediation
process. [FN54] However, simply saying “throughout
the process” was too vague, leaving the advocate with little practical
guidance. So, I perused the mediation process to isolate discrete representation
junctures where an attorney should consciously implement his or her
focused plan to advance interests and overcome impediments. I identified
six key junctures. [FN55]
*133 Three of the key junctures arise before the first mediation
session, when (1) selecting a mediator, (2) preparing a pre-mediation
submission, and (3) participating in a pre-mediation conference. The
other three junctures arise in the mediation session when (4) presenting
opening statements, (5) participating in joint sessions, and (6) participating
in caucuses.
Assuming
that Ms. Brockovich thinks her clients should convey personally and
vividly that they have multiple interests and that the two sides are
likely to reach an impasse over whether the defendant contributed to
polluting the town's water (a data conflict), she might prepare a representation
plan for four of the junctures as follows. When selecting the mediator
(juncture one), she would choose someone who would deeply involve her
clients and who would know how to handle complex scientific data. When
preparing a pre-mediation submission (juncture two), she would want
to explain the substantial data conflict so that the mediator would
come prepared to deal with it. During the mediation session, she may
want to request a caucus with the mediator (juncture six) to share any
information that is especially damaging to the other side and to discuss
with the mediator how to productively present this information to the
other side in the joint session (juncture five).
VI. Conclusion
This
article described the five components of the mediation representation
formula as well as how the formula was derived. This model of client
representation that forms the foundation of Mediation Representation
offers the advocate an approach to representing clients that takes full
advantage of the distinctive opportunities in a problem-solving mediation
process.
In Erin
Brockovich, the plaintiffs did not use this approach, however. They used
a traditional adversarial approach and achieved a settlement that was
impressive, as least based on one criterion. They negotiated the largest
payment ever in a direct-action lawsuit, although after a protracted
period of angst and uncertainty for the plaintiffs and their attorneys. The
plaintiffs were thrilled with the settlement because the payment vindicated
them and seemed to offer them ample financial resources to meet their
future needs. It was too *134 late, however, for those who died
or were destined to die from exposure to the contaminated water. In
addition, whether this was the best solution for both sides will never
be known. Parties are unlikely to know whether they achieved optimum
resolutions if they approach disputes as if they are only about money.
Imagine
how different the representation and the results might have been if
Ms. Brockovich had identified both sides' interests and the impediments
to agreement, and had enlisted help from a mediator at key junctures,
searching for solutions that advanced both sides' interests. By fixating
less on the size of the check and more on a tailored solution to meet
both sides' interests, the result might have materialized sooner; it
might have included lifetime health insurance with no deductibles, clean-up
of the polluted water, the option of the utility buying residents' homes,
individual lump sum payments for pain and suffering, a public and sincere
apology by the utility, and more. The plaintiffs would have received
what they needed while the utility might have met the plaintiffs' interests
at less cost to it while beginning the process of resuscitating its
debilitated reputation. This sort of crafted and possibly quicker result
exemplifies the potential of mediation when attorneys advocate as problem-solvers.
This
model of client representation ought to be applied by an advocate for
the duration of the representation, starting as soon as the first client
interview. This problem-solving role should be maintained when contacting
the other side about the use of mediation as well as when preparing
the case and client for the mediation session. Then, by advocating at
every juncture in the ways suggested in this article, an attorney should
be able to realize the full potential of a problem-solving process.
[FNd1]. Harold Abramson, Professor of Law,
Touro Law Center. I want to thank Dwight Golann, Lela Love, Ken Rosenblum,
and Barbara Swartz for generously finding the time to offer valuable
comments, as well as my research assistant, Joseph Wilson, for putting
the footnotes in proper form.
[FN1]. See Tom Mainelli, Banias: The Mobile
Chip to Beat?, PCWorld, Oct. 15, 2002, at http://www.pcworld.com/news/article/0,aid,105957,00.asp;
see also Kai Schmerer, IDF: Banias Fever Breaks Out, ZDNet UK at http://
reviews.zdnet.co.uk/hardware/processorsmemory/0,39024015,10001951,00.htm
(Sept. 16, 2002) (last visited Feb. 28, 2005).
[FN2]. See Harold I. Abramson, Mediation
Representation: Advocating in a Problem-Solving Process (2004) (Recipient
of 2004 Book Award of the CPR Institute for Dispute Resolution).
[FN3]. See, e.g., Dwight Golann, Mediating
Legal Disputes: Effective Strategies for Lawyers and Mediators 14-26
(1996); Christopher W. Moore, The Mediation Process: Practical Strategies
for Resolving Conflict 18-19, 55-56 (2d ed. 1996); Jay Folberg &
Alison Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts
Without Litigation 7-9, 38-72 (1984).
[FN4]. Even though I could not find a rigorous
study of the approaches taught in mediation training programs, I came
across ample anecdotal evidence that suggests that many, if not most,
training programs teach mediators the interest-based or problem-solving
approach. In informal surveys of mediators compiled when I have conducted
advanced mediation training, for instance, I was informed that most,
if not all, of the participants received basic training in some variation
of problem-solving. This approach also seems to be taught in many court-connected
programs, by many private trainers, and at Harvard Law School (where
Professors Fisher, Sander, and Mnookin train negotiators and mediators
from around the world). Also, although a significant number of mediators
are trained in the transformative approach, a number of them also seem
to have been trained in problem-solving.
[FN5]. My book is the first one to focus
exclusively on how to be a problem-solving advocate. It develops a coherent
theory and comprehensive approach to representation. Other books have
ably presented an amalgam of strategies for advocates in mediation.
For example, one book explains how to conduct a traditional negotiation
dance of offer and counter-offers in mediation. See Michael P. Silver,
Mediation and Negotiation: Representing Your Clients 121-27 (2001).
[FN6]. See Marc Galanter, The Vanishing
Trial: An Examination of Trials and Related Matters in Federal and State
Courts (Preliminary Version Oct. 24, 2003) (prepared for the Symposium
on the Vanishing Trial sponsored by the Litigation Section of the American
Bar Association, San Francisco, CA, Dec. 12-14, 2003) (documenting that
while the number of federal lawsuits filed has increased, the number
of trials has decreased, from 11.5% in 1962 to 1.8% in 2002, with comparable
trends in the state courts. One of the documented replacements for trials
is mediation.); see also John Lande, Getting
the Faith: Why Business Lawyers and Executives Believe in Mediation,
5 Harv. Negot. L. Rev. 137 (2000).
[FN7]. See generally Abramson, supra note
2; Eric Galton, Representing Clients in Mediation (1994); Jack Cooley,
Mediation Advocacy (2d ed. 2002); Golann, supra note 3; Videotape: Representing
Clients in Mediation: How Advocates Can Share a Mediator's Powers (Dwight
Golann 2000) (on file with the ABA Section of Litigation); Moore, supra
note 3; Roger Fisher, William Ury & Bruce Patton, Getting to Yes:
Negotiating Agreement without Giving in (Penguin Books 1991) (1981)
[hereinafter Fisher et al.].
[FN8]. Maytag Corporation ran a national
television advertisement that it called “The Great Mediator (pizza
or casserole).” In the advertisement, the “Maytag Man” appears
as “a great mediator” who has the answer to the question that has
“aroused fierce passions for centuries: What's for dinner?” The
mediator presents a new range that can “cook two different foods,
at two different temperatures, for one complete meal.” The advertisement
ran from August 1999 to December 1999. Interview with Nicole Kaczmarek,
Operations Manager, LB Works, Advertising Agency for Maytag Corporation
(July 2003). The salesman was mediating using an evaluative approach
in which he offered a solution that would meet the needs of both parties
to eat different foods.
[FN9]. See, e.g., Kimberlee K. Kovach, Mediation:
Principles and Practice 23-25 (2d ed. 2000); Golann, supra note 3, at
14-26; Moore, supra note 3; Folberg & Taylor, supra note 3, at 7-9,
38-72.
[FN10]. See Videotape: Comparing Settlement
Conferences and Mediations (Abramson and Cronin-Harris, NYS Bar Association,
1999) (on file with NYS Bar Association); see also Carrie Menkel-Meadow,
For and Against
Settlement: Uses and Abuses of the Mandatory Settlement Conference,
33 UCLA L. Rev. 485, 507-11 (1985).
A significant difference between a directive, evaluative mediation and
a judicial settlement conference is the power possessed by the third
party. In mediation, the person lacks ultimate decision-making power
while in a judicial settlement conference, the person may be the ultimate
decision maker.
[FN11]. While the mediator may not be the
primary audience, the mediator, along with the other attorney, are important
secondary audiences. These secondary audiences require special attention
at different points in the mediation, depending on what is happening
during the mediation. For example, this article considers later how
the advocate might enlist the assistance of the mediator to help break
impasses, among other types of assistance. See infra Part V.C &
D; see also Abramson, supra note 2, at ch. 5.7 (Select Your Primary
Audience in the Mediation).
[FN12]. See Heumann & Hyman, Negotiation Methods
and Litigation Settlement Methods in New Jersey:
‘You Can't Always Get What You Want,’ 12 Ohio St. J. on Disp. Resol.
253, 309 (1997)
(“While sixty-one percent of the lawyers would like to see more problem-solving
negotiation methods, about seventy-one percent of negotiations are carried
out with positional methods instead.”).
[FN13]. See Suzanne J. Schmitz, What Should
We Teach in ADR Courses: Concepts and Skills for Lawyers Representing
Clients in Mediation, 6 harv. negot. l. rev. 189, 204 (2001).
[FN14]. The state bar association program
was held in New York City in January 1994.
[FN15]. During the last ten years, others
also turned to educating the mediation consumer. For example, the CPR
Institute of Dispute Resolution, which serves a membership of 500 corporations
and law firms, provides, among other services, education in ADR advocacy
to lawyers and corporate clients. See CPR Institute of Dispute Resolution,
at http://www.cpradr.org. Many bar associations currently offer education
programs on mediation advocacy. See, e.g., programs offered by the ABA
Section on Dispute Resolution, at http:// www.abanet.org/dispute/home.html
(last visited Feb. 4, 2005).
[FN16]. In my advocacy training, I include
a module on how the advocate can prod the mediator toward a desired
process such as problem-solving when the mediator lacks either the training
or the persistency to do so. The somewhat provocative title of that
teaching module is: “How to Deal with Aberrant Mediators.”
[FN17]. See generally Kovach, supra note
9; Golann, supra note 3, chs. 2 & 3; Moore, supra note 3; Folberg
& Taylor, supra note 3.
[FN18]. See Andrea Kupfer Schneider, Shattering Negotiation
Myths: Empirical Evidence on the Effectiveness of Negotiation Style,
7 Harv. Negot. L. Rev. 143, 196 (2002)
(in an extensive study of negotiation styles, 75 percent of true problem-solving
negotiators were considered effective as compared with less than 50
percent of adversarial bargainers, a percentage that shrunk to 25 percent
when examining adversarial bargainers who were unethical); Robert H.
Mnookin et al., Beyond Winning: Negotiating to Create Value in Deals
and Disputes 321-322 (2000); G. Richard Shell, Bargaining for Advantage:
Negotiation Strategies for Reasonable People 12-14 (1999). The authors
concluded that clients are usually better off when a lawyer adopts a
problem-solving approach over an adversarial one. Other studies are
cited that suggest that cooperative negotiators are more effective than
competitive ones.
[FN19]. Erin Brockovich (Universal Studios
2000).
[FN20]. Erin Brockovich was not a lawyer
in the movie; she was assisting the attorney as a sort of paralegal.
Rather than dealing with the relationship between a paralegal and the
attorney who must make all the critical representation decisions, I
simplified the discussion in the article by focusing on Ms. Brockovich's
representation choices as if she were an attorney. Id.
[FN21]. See, e.g., Mnookin et al., supra
note 18; Fisher et al., supra note 7; Symposium, Conceiving the Lawyer
As Creative Problem Solver, 34 Cal. W. L. Rev. 267 (1998); Thomas D. Barton, Creative Problem-Solving:
Purpose, Meaning, and Values, 34 Cal. W. L. Rev. 273 (1998); Paul Brest & Linda Hamilton Krieger, Lawyers As Problem
Solvers, 72 Temp. L. Rev. 811 (1999);
Seamus Dunn, Case Study: The Northern Ireland Experience - Possibilities
For Cross-Fertilization Learning, 19 Alternatives to the High Cost of
Litig., at 153 (June 2001); Carrie Menkel-Meadow, Aha? Is Creativity
Possible In Legal Problem Solving and Teachable In Legal Education?,
6 Harv. Negot. L. Rev. 987 (2001); Carrie J. Menkel-Meadow, When Winning Isn't
Everything: The Lawyer As Problem Solver, 28 Hofstra L. Rev. 905 (2000); Carrie Menkel-Meadow, The Lawyer As Problem
Solver and Third-Party Neutral: Creativity and Non-Partisanship In Lawyering,
72 Temp. L. Rev. 785 (1999);
Carrie Menkel-Meadow, Toward
Another View Of Legal Negotiation: The Structure Of Problem Solving,
31 UCLA L. Rev. 754 (1984);
Linda Morton, Teaching
Creative Problem Solving: A Paradigmatic Approach, 34 Cal. W. L. Rev.
375 (1998); Janet
Reno, Lawyers
As Problem-Solvers: Keynote Address to the AALS, 49 J. Legal Educ. 5
(1999). See also
California Western School of Law, Center for Creative Problem Solving
(2004), at http://www2.cwsl.edu/mcgill/mc_main.html (last visited Feb.
4, 2005).
[FN22]. Instead of referring to “win-win” solutions, I suggest searching for solutions that can benefit both sides. I avoid using the more familiar, if not overused, “win-win” jargon because that jargon carries baggage that can blind people to the underlying valuable point that still retains considerable vitality. The “win-win” attitude can be sharply contrasted with the opposite one of “win-lose,” neatly capturing a fundamental difference between the problem-solving and adversarial approaches.
Many
lawyers consider the idea that both sides can secure benefits as na�ve,
or not anchored in reality. However, the notion that both sides might
be able to gain something in negotiations reflects an optimistic attitude
that can open the mind to creative searches. The likelihood of finding
such gains in negotiations is greater than in court. In negotiations,
for instance, even the defendant who agrees to pay considerable damages
may gain other benefits, such as no publicity, no precedent, and a continuing
business relationship - benefits that are usually unavailable in court.
[FN23]. For a full discussion of how to identify
clients' interests as opposed to positions, see Abramson, supra note
2, at ch. 3.2(a) and Fisher et al., supra note 7.
[FN24]. See Abramson, supra note 2, at ch.
1.5.
[FN25]. In the hybrid approach, attorneys
switch between adversarial and problem-solving tactics, depending on
how the mediation is unfolding.
[FN26]. See Dwight Golann, Is Legal Mediation a Process of Repair - or Separation? An Empirical Study, and Its Implications, 7 Harv. Negot. L. Rev. 301, 334 (2002) (in the only empirical study on the subject, the author found that “almost two-thirds of all [mediated] settlements in the survey were integrative in nature .... The results suggest that both mediators and advocates should consider making a search for integrative outcomes an important aspect of their mediation strategy.”).
At least
one category of disputes is usually primarily about money. The classic
personal injury dispute between strangers who will never deal with each
other again can be only about money and therefore not open to creative
resolutions other than a tailored payment scheme. However, even in these
disputes, one side may occasionally want something more than money,
such as vindication, fair treatment, etc.
[FN27]. In a recent case that I mediated,
the parties arrived with extreme monetary claims on the table and a
long history of failed negotiations. After more than three hours of
mediation, the parties and attorneys negotiated a written apology signed
by the defendant and a written introduction to future buyers signed
by the plaintiff. The monetary issues were then resolved in less than
a minute! The parties were apparently already on the same page for settling
the money claims but were not ready to settle until some non-monetary
needs were met.
[FN28]. See Abramson, supra note 2, at ch.
1.3(a)(iii) on “Manage Remaining Distributive Conflicts” (considering
how to use problem-solving moves to resolve easy distributive issues);
see also infra Part V.D.2 (“Mediators' Techniques”). For other methods,
see Abramson, supra note 2, at ch.7.2(d)(iii), and text accompanying
note 52 infra.
[FN29]. See Abramson, supra note 2, at ch.
1.3(a)(iii) on “Manage Remaining Distributive Conflicts” (This section
considers how to resolve difficult distributive issues by using tempered
adversarial strategies. For example, an attorney can omit the use of
traditional tricks and extreme threats, and instead emphasize principled
arguments while engaging in the negotiation dance of offers and counter-offers).
[FN30]. See id. at 13-14.
[FN31]. See Mnookin et al., supra note 18,
at 108-18, 167-72.
[FN32]. See Dan Dobbs, Law of Remedies: Damages,
Equity, Restitution �2.5 (2d ed. 1993).
[FN33]. One creative solution for changing
the litigator's mindset is to change the attorney who tries to settle
the case. Instead of the litigator pursuing both the litigation and
the negotiations, the litigator only litigates. Any negotiations would
be handled by a separate settlement counsel who is committed to a problem-solving
approach. For a thoughtful development of this solution, see William
F. Coyne, Jr., The Case
for Settlement Counsel, 14 Ohio St. J. on Disp. Resol. 367, 367-70 (1999). The author concluded that “the
mind-set needed to do effective problem-solving is incompatible with
the mind-set needed to pursue litigation whole-heartedly.” Id. at 393.
[FN34]. See Heumann & Hyman, supra note
12.
[FN35]. Id. at 295-309.
[FN36]. A party settles when the negotiated
solution is better than the alternative to settlement known as the BATNA
(Best Alternative To A Negotiated Agreement). See Fisher et al., supra
note 7, at 101-11 (coining the term “BATNA”). The BATNA is your
client's best option if the negotiation fails.
[FN37]. The attorney should develop a solution
that meets his or her client's interests better than the solution offered
by his or her client's BATNA. For a full discussion of how to identify
client's interests as opposed to positions, see Abramson, supra note
2, at 98-104; Fisher et al., supra note 7, at 41-57.
[FN38]. I served as Chair of this committee
as well as host of the inaugural regional competition for the New York
City area law schools. The annual competition includes about ten regional
competitions with the final rounds held each year in conjunction with
the annual meeting of the ABA Section on Dispute Resolution. The judging
criteria are based on students performing a problem-solving lawyer role.
[FN39]. Building a relationship with the other side also is important. A separate criterion focuses on “Problem-Solving Relationship Building.” However, the two criteria do not compete with each other.
The
Rules Committee of the Mediation Representation Competition of the ABA
Section of Dispute Resolution drafted the assessment criteria during
2000-2001 that became effective for the 2001-2002 competition year. See
American Bar Association Section of Dispute Resolution, Representation
in Mediation Competition 2005: Rules and Instructions (Dec. 16, 2004),
at http:// www.abanet.org/dispute/rulesandinstructions2004.doc (current
version of the criteria).
[FN40]. See Jean R. Sternlight, Lawyers' Representation
of Clients in Mediation: Using Economics and Psychology to Structure
Advocacy in a Nonadversarial Setting, 14 Ohio St. J. on Disp. Resol.
269, 297-331 (1999)
(identifying barriers to negotiations based on economists' insights,
psychologists' insights, flaws in the rationality assumption, and principal/agent
conflicts); Moore, supra note 3 at 60-61 (identifying five causes of
conflicts: data conflicts, interest conflicts, structural conflicts,
relationship conflicts, and value conflicts); Golann, supra note 3,
at 153-241 (identifying three categories of impasses - process, psychological,
and merits); Frank E.A. Sander & Stephen B. Goldberg, Fitting the
Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure,
10 Negot. J. 49, 54-59 (1994) (identifying ten impediments to settlement).
[FN41]. See Moore, supra note 3, at 60-61
(presenting a Circle of Conflict in which five sources of conflicts
are identified along with possible strategies for intervention).
[FN42]. Several litigators who have seen
the film segment have told me that they would have sipped the water
offered by Erin Brockovich. They figured that drinking so little water
would have been harmless and would have thoroughly defused the tactic.
This reaction reminds us how astute attorneys can neutralize clever
adversarial tactics.
[FN43]. In a problem-solving process in which
the concept of “interests” performs such a vital and pervasive role,
Moore's narrow and distinctive use of “interest” conflicts can be
confusing. I prefer referring to “wants” or “desire” conflicts.
Parties may reach an impasse because their substantive, procedural,
or psychological wants or desires are in conflict with each other.
[FN44]. See Abramson, supra note 2, at chs.
4.2(b)(i) and 5.1(e)(i).
[FN45]. See Jeffrey W. Stempel, Beyond Formalism
and False Dichotomies: The Need for Institutionalizing a Flexible Concept
of the Mediator's Role, 24 Fla. St. U. L. Rev. 949, 950, 983 (1997) (passionately arguing for “flexible
mediation that permits judicious use of evaluative techniques,” the
author still had to recognize that when the advocate knows that the
case will be evaluated, the parties are “more likely to present information
as advocacy and less as background for negotiation or problem-solving.”
In addition, “if mediation veers too far from” its facilitative
assumptions, the author concluded, “it loses some of [its] creative
and transformative potential.”).
[FN46]. The CEDR is a major dispute resolution
center based in London. See Centre for Effective Dispute Resolution,
at http://www.cedr.co.uk (last visited Jan. 20, 2005).
[FN47]. See CEDR, Model Mediation Procedure
and Agreement, P 12 (8th ed. Oct. 2002), available at http://www.cedr.co.uk/library/documents/MMPA_
8thEdition.pdf (last visited Feb. 28, 2005). For a somewhat less strict
approach, see The CPR/CCPIT, Mediation Procedure For Disputes Submitted
to the U.S.-China Business Mediation Center, �7 (2004), available at
http:// www.cpradr.org/pdfs/Intl_China_Procedure04.pdf (last visited
Jan. 2, 2005); Daini Tokyo Bar Ass'n, Rules of Procedure for Arbitration
and Mediation, art. 25 (Advisory Opinion) (June 9, 2000), available
at http:// www.niben.or.jp/chusai/e_chusai/e_qanda/e_rules.htm (last
visited Jan. 2, 2005).
[FN48]. See CEDR, supra note 47, Guidance
Notes: The Mediation, 9-12. See also CPR Institute for Dispute Resolution,
Mediation Procedure for Business Disputes in Europe, R.6 (1996), available
at http:// www.cpradr.org/formbook/pdfs/1/medprocedures2.pdf (limiting
the recommendation power to after the parties fail to reach a settlement
and after parties consent to receiving the mediator's final settlement
proposal).
[FN49]. See infra Part D.1 (suggesting that
if an attorney knows that a mediator might offer his or her own evaluation
of the legal merits, the attorney will likely shift from a problem-solving
to an adversarial mode of advocacy in an effort to induce a favorable
assessment).
[FN50]. A decision tree is a mathematical
technique for estimating the value of an uncertain outcome (e.g. winning
in court) by multiplying the probability of an event happening times
the likely outcome if it happens (e.g., how likely to win in court).
The plus component involves asking a particular set of questions that
will help a client attach a value to a set of personal costs and benefits.
See Abramson, supra note 2, at app. A.
[FN51]. The Mediation Representation book
does recognize that it is possible to construct a decision-tree that
incorporates the probability that the litigation choice could produce
personal benefits or costs. It also offers a simple example of how to
do it. See Abramson, supra note 2, at 309 n.8.
[FN52]. Mediation Representation describes
and assesses the strengths and drawbacks of each of these six methods.
See Abramson, supra note 2, at ch.7.2(d)(iii).
[FN53]. See Abramson, supra note 2, at ch.
2.3.
[FN54]. See Abramson, supra note 2, at ch.
5.16 (Checklist for Preparing Case and Mediation Representation Plan).
[FN55]. Junctures are not the same as “stages” in the process, in that stages identify the sequential steps in the mediation process. Nevertheless, junctures and stages can overlap.
There are other junctures in the mediation process. Attorneys should engage in problem-solving representation when (1) initially interviewing his/her client, (2) approaching the other attorney about the use of mediation, (3) preparing the case for mediation, (4) preparing his/her client, and (5) drafting a settlement agreement or developing an exit plan from an unsuccessful mediation. See Abramson, supra note 2, at 8 n.23.
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