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Mediation representation : advocating as a problem solver / Harold I. Abramson, Professor of Law, Touro Law Center.
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Title:Mediation representation : advocating as a problem solver / Harold I. Abramson, Professor of Law, Touro Law Center.
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Author/Creator:Abramson, Harold I., author.
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Published/Created:New York : Wolters Kluwer Law & Business, 2013.
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Holdings
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Location:
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Temporarily shelved at LAW LIBRARY reference room (level 2)Where is this?
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Call Number: K2390 .A92 2013
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Number of Items:1
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Status:Available
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Location:
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Temporarily shelved at LAW LIBRARY reference room (level 2)Where is this?
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Library of Congress Subjects:Mediation.
Dispute resolution (Law)
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Medical Subjects: Negotiating
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Edition:Third edition.
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Description:xxxix, 552 pages : illustrations ; 26 cm
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Series:Aspen casebook series.
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Notes:"Includes extensive online videos"-- Cover.
Includes bibliographical references and index.
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ISBN:9781454831075 (pbk.)
1454831073 (pbk.)
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Contents:Machine generated contents note: 1. Different Approach to Representation
2. Framework for Advocacy: The Mediation Representation Triangle
3. Answers to Essential Representation Questions
4. Coverage of the Book
5. Special Features of the Text
ch. 1 Negotiating in Mediations
1. Effective Negotiation Approach and Style for Mediation Advocacy
2. Positional Approach and Style
a. Preparation
i. Gather Information
ii. Develop Plan
iii. Develop Questions
b. Strategies and Stages at the Table
i. Exchange Information
ii. Bargaining
c. Closure
i. Deadline
ii. Finish Final Bargaining
iii. Secure Commitment
d. Limitations
i. Limits Creative Opportunities
ii. Drains Creative Engery
iii. Pressure to Split Differences
iv. Stresses Relationships
v. Generates Risk of Impasse
e. Lawyers Favor the Positional Negotiation Approach
3. Problem-Solving Approach and Style
a. Preparation
i. Gather Information
ii. Plan for Emotions as an Obstacle and Opportunity
iii. Plan Questions and Judicious Sharing of Information
b. Strategies and Stages at the Table
i. Exchange Information for Specific Purposes
ii. Advocate for Client's Interests
iii. Overcome Any Impediments
iv. Create Options
v. Claim
c. Closure
i. Establish Deadlines
ii. Finish Final Bargaining
iii. Secure Commitment
4. Negotiation Stages as a Roadmap
5. Stages of the Positional Approach (Roadmap)
a. Stage 1: Preparation
i. Gather Information
ii. Develop Plan
iii. Develop Questions
b. Stage 2: Exchange Information for Specific Purposes
c. Stage 3: Bargaining: Implement First Offer Strategy
d. Stage 4: Bargaining: Engage in Concession Dance with Music
e. Stage 5: Closure
i. Deadline
ii. Bargain Final Time
iii. Secure Commitment
iv. Implement
6. Stages of the Problem-Solving Approach (Roadmap)
a. Stage 1: Preparation
b. Stage 2: Rhetoric
c. Stage 3: Cultivate Relationship and Negotiate Negotiation Process
d. Stage 4: Exchange Information for Specific Purposes
e. Stage 5: Identify Issues, Interests, BATNAs, and Impediments
f. Stage 6: Formulate Agenda
g. Stage 7: Overcome Impediments
h. Stage 8: Create Options
i. Stage 9: Claim
j. Stage 10: Closure
i. Establish Deadlines
ii. Bargain Final Time
iii. Secure Commitment
iv. Implement
7. Converting the Adversarial Negotiator into a Problem Solver
a. Engage Proactively in Problem-Solving Moves
b. Name the Negotiation Tactic
c. Change Participants at the Table
d. Change the Process to Mediation
8. Checklists: Positional and Problem-Solving Negotiations
ch. 2 Familiarizing Yourself with Mediation
1. Mediation Definition
2. Stages of Mediation
a. Stage 1: Initiation of the Mediation Process
b. Stage 2: Premediation Conference
c. Stage 3: Premediation Submissions
d. Stage 4: Mediation Session
i. Begin with Mediator's Opening Statement
ii. Vent and Exchange Information (Opening Statements of Participants, First Joint Session, and First Caucus)
iii. Identify Issues, Interests, Impediments, and BATNAs
iv. Formulate Agenda
-Issues to Resolve and Impediments
v. Overcome Impediments
vi. Create Options
vii. Claim Options
viii. Closure
-Agreement or Exit Plan
e. Stage 5: Implement Agreement
3. Contributions of Mediators: Generally
a. Professional Standards
b. Contributions
4. Contributions of Mediators: Managing Orientations
a. Facilitative, Evaluative, and Other Western Approaches
i. Facilitative
ii. Evaluative
iii. Evaluatively Directive
iv. Transformative
v. Understanding-Based
b. Other Primarily Non-Western Approaches: Wisely Directive and Authoritatively Directive
i. Wisely Directive
ii. Authoritatively Directive
iii. Distinguish Wisely and Authoritatively Directive Mediation from Other Settlement Processes
5. Contributions of Mediators: View of Problem and Client Participation Orientations
a. Narrow or Broad View of Problem
b. Limited or Active Client Participation
6. Contributions of Mediators: Caucusing Orientations
7. Contributions of Mediators: Techniques
a. Facilitating How to Negotiate Productively
b. Promoting Communications
i. Questioning Techniques
ii. Listening Techniques
iii. Reframing of Statements and Issues
c. Managing Emotions
d. Inventing Options for Settlement: Brainstorming
e. Methods for Structuring the Inventing and Deciding of Settlement Options
f. Dealing with Power Inequalities
g. Overcoming a Chronic Impediment: Clashing Views of the Court Outcome (BATNA)
h. Resorting to Caucuses
i. Closing the Final Gap: "Mediator's Proposal" and Other Techniques
j. Overcoming Other Impediments to Settlement
8. Contributions of Mediators: Controlling Mediation Stages
9. How Mediators Contribute to Problem-Solving and Positional Negotiations
a. Problem-Solving Mediation
b. Positional Mediation
Overview of Chapters 3
8
ch. 3 Counseling Your Client About Mediation
1. Professional Obligation
2. Client Interviewing Techniques
a. Interests
b. Impediments
3. Process Interests Suitable for Meeting in Mediation
a. Process Interests That Can Be Met in Mediation (Other Than Overcoming Impediments)
b. Process Interests (in Overcoming Impediments) That Can Be Met in Mediation
4. Process Interests Less Suitable for Meeting in Mediation
5. Disputes Ripe for Mediation
6. Presenting the Mediation Option to Your Client
a. When Retained
b. When Negotiating a Contract
c. When the Case Is Ripe for Mediation
d. When Finalizing a Settlement Agreement
7. Checklist: Client Interview
ch. 4 Negotiating an Agreement to Mediate
1. Procuring Agreement to Mediate
a. Activating Mediation Agreements and Pledges
b. Using Third Parties to Procure an Agreement
c. Persuading the Other Side Directly
2. Negotiating Agreement to Mediate: Mediator Credentials
a. Training and Experience
b. Subject Matter Expertise
c. Neutrality and Personal Traits
d. Additional Credentials for International (Cross-Cultural) Disputes
3. Negotiating Agreement to Mediate: Mediator Orientations
a. How to Manage the Process
i. Primary Choices: Facilitative or Evaluative
ii. Choices Around the Globe: Elicitive to Directive
b. How to View the Problem: Narrowly or Broadly
c. How to Involve Clients: Restrictively or Actively
d. How to Use Caucuses: Primarily, Selectively, or Not at All
i. Two Guiding Questions
ii. Options for Caucusing
iii. Conclusion and Recommendations
4. Negotiating Agreement to Mediate: Other Provisions
a. Single Mediator or Comediators
b. Paying the Mediator
c. Procedure for Selecting the Mediator
d. Appropriate Client Representatives
e. Sufficient Discovery
f. Adequate Confidentiality
g. Standstill Agreement
h. Location and Language
i. Default Rules and Administering the Mediation
5. Selecting the Mediator: Questions for Candidate and References
a. Questions for Both Candidate and References
b. Questions for References
6. Checklist: Negotiating Agreement to Mediate
ch. 5 Preparing Your Case for Mediation
1. Prepare a Mediation Representation Plan: Overview
2. Negotiation Approach: Make the Choice
3. Enlist Mediator Assistance: Overview, Manage Process, View of Problem, and Involve Client
a. Take Advantage of Mediator's Mix of Orientations
b. Manage the Process
i. Techniques for Evaluation
ii. Impact of Evaluation Techniques on Your Representation
iii. Impact of the Cross-Cultural Mediator's Approach on Your Representation
c. Narrow or Broad View of Problem
d. Limited or Active Client Participation
4. Enlist Mediator Assistance: Caucusing
a. Options for Caucusing
b. Impact of Caucusing Choice on Representation Plan
i. No-Caucus Approach
ii. Mostly Caucus Approach
iii. Selective Caucusing: Recommended Approach
(1). Information Sharing Caucus
(a). Develop Rapport and Trust with Mediator
(b). Vent
(c). Share Information and Solicit Advice
(d). Clarify Client's Interests
(e). Assess Legal Case (Public BATNA)
(2). Negotiating Caucuses
(a). Develop and Test Settlement Proposals with the Mediator
(b). Present and Test Proposals with Other Side
(c). Seek Advice and Assistance on Impasse Breaking
(d). Solicit Coaching Advice
(e). Negotiate with the Mediator
(f). Enlist or Elicit the Mediator as a Messenger
5. Enlist Mediator Assistance: Take Advantage of Techniques and Control of Stages
6. Representation Plan for the Three I's and Six Key Junctures in the Mediation Process
a. Three Planning I's
i. Meet Interests
ii. Overcome Impediments
iii. Share Information
b. Six Junctures
c. Illustrations: Representation Plans to Overcome Impediments
7. Prepare Public BATNA (Legal Case) and Learn Client's Personal BATNA (Junctures 2
6)
a. Research Law
b. Gathering Factual Information
i. Assembling Essential Information (Including Interests and Impediments)
ii. Reducing Discovery Costs
iii. Avoiding Discovery Abuses
c. File Clean-up Motions
Contents note continued: d. Evaluations by Alternative Litigation Financing (ALF) Suppliers
e. Learn Client's Personal BATNA
8. Identify Who Should Attend the Mediation Sessions (Junctures 4
6)
a. Should Attorneys Be Present?
b. Should Clients Be Present and Active?
i. Changing the Traditional Arrangement
ii. Benefits of Client Participation
c. Who Should Attend on Behalf of an Institutional Client?
i. Ideal Client Representative
ii. Key Credential: Settlement Authority
iii. Next Best Client Representative
iv. Role of In-House Counsel
v. Convincing a Client Representative to Participate
d. Should Other People Be Present?
9. Divide Responsibilities Between You and Your Client (Junctures 4
6)
a. Options
b. Recommendations
10. Select Your Primary Audience in the Mediation (Junctures 4
6)
11. Prepare the Presentation of Your Legal Case (Junctures 2
6)
a. How to Present It
b. When to Present It
12. Preliminarily Prepare Your Complete Case Presentation, Including Opening Statements (Junctures 4
6)
a. Presenting Your Case
b. Should You Present Opening Statements?
c. Challenge
d. Foundational Guidelines
e. Tone
f. Content: Your Complete Case and What the Mediator Can Contribute
i. Story
ii. BATNAs
iii. What Your Client Wants Out of the Mediation
iv. What You Would Like the Mediator to Do
v. Visual and Audio Aids, Including Documentary Evidence
g. Should Your Client Present an Opening Statement?
h. How Should You Divide Opening Statements Between You and Your Client?
i. Should You or Your Client Speak First?
13. Consider the Level of Confidentiality That You Need (Junctures 2
6)
a. Is Confidentiality Necessary
b. Sources
i. Rule 408
-Type Evidentiary Exclusions
ii. UMA
iii. California Law
iv. Private Confidentiality Agreements
c. What Is Covered?
i. Rule 408
-Type Evidentiary Exclusions
ii. California Law
iii. UMA
iv. Private Confidentiality Agreements
d. What Exceptions to Confidentiality?
i. Rule 408
-Type Evidentiary Exclusions
ii. UMA
iii. Private Confidentiality Agreements
iv. California Law
e. Sanctions for Confidentiality Breaches
f. Withholding Information Regardless of Confidentiality
14. Select the Mediator (Juncture 1)
15. Prepare for Premediation Contacts with the Mediator (Junctures 2
3)
a. Prepare for Premediation Conference
b. Prepare Premediation Submissions
16. Prepare for Initial Information Exchange (Junctures 4
6)
a. Establish Rapport and Open Communications
b. Prepare Questions
c. Decide What Information to Share and When and Where
i. Disclosing Advantageous Information
ii. Acknowledging Harmful Evidence and Law
d. Prepare What to Bring
17. Abide by the Emerging Code of Conduct, Including Mediation Law (Junctures 2
6)
a. Professional Conduct Code
b. Local Statutes, Court Rules, and Cases
c. Conclusion
18. Engaging an Interpreter (Junctures 1
6)
19. Illustration: Comprehensive Representation Plan
20. Illustration: Representation Plan for a Cross-Cultural Mediation
a. How to Bridge Cultural Gaps
b. Examples of Plans
21. Checklist: Preparing Mediation Representation Plan
ch. 6 Preparing Your Client for Mediation
1. Explain the Mediation Process and Your Client's Role
2. Explain How Your Role Is Different Than in Court
3. Reinterview Your Client About Interests, Impediments, and Opinions
a. Clarifying Interests and Impediments
b. Prodding Creative Solutions
4. Review Information Needs and the Possibility of Incomplete Discovery
5. Review Strengths and Weaknesses of Legal Case (Public BATNA)
6. Probe for Your Client's Personal Benefits and Costs of Litigating (Personal BATNA)
7. Finalize Mediation Representation Plan
8. Prepare Your Client to Answer Likely Questions
9. Finalize Opening Statements
10. Checklist: Preparing Client
ch. 7 Appearing in the Mediation: Premediation Conference, Mediation Session, and Postsession
1. Premediation Conference
2. Mediation Session
a. Generate Movement After Opening Statements
b. Proactively Enlist the Mediator
i. Predominantly Facilitative (with Essential Evaluation)
ii. Slippage
iii. Inconsistent Practices
iv. Flexible Practices
v. Request Evaluation (Switch Roles)
vi. Predominantly Evaluative
c. Answer Predictable Questions
d. Take Advantage of Caucusing Opportunities
i. Mediator Caucuses with Attorney and Client
ii. Other Variations of Mediator Caucuses
iii. Attorney-Client Caucuses
e. Search for Creative Solutions
i. Designate Creative Time
ii. Consider Less Familiar Options, Including Apology
f. Claiming Options
g. Bridge the Final Gap
i. Analyzing the Bottom Line
ii. Methods for Bridging the Final Gap
(1). Binding Final-Offer Arbitration (FOA)
(2). Mediator's Proposal
(3). Hypothetical Testing
(4). Confidential Disclosure of Bottom Lines
(5). Confidential Disclosure of Settlement Proposal
(6). Safety Deposit Box
(7). Challenge Others
h. Use Other Dispute Resolution Processes for Breaking Impasses
i. Wrap-up
i. Draft a Settlement Agreement
ii. Adjourn
iii. Formulate an Exit Plan if No Settlement
3. Postsession
a. If You Represented Your Client in a Successful Session
b. If You Represented Your Client but Did Not Participate in the Successful Session
c. If You Represented Your Client in a Session That Was Not Fully Successful
d. If You Are Retained After the Session to Approve a Proposed Settlement
4. Checklist: Mediation Appearances
ch. 8 Breaking Impasses with Alternatives to Mediation (ATM)
1. Causes of Impasses: Needs Unmet in the Mediation
a. Realistic Assessment of Facts (Data Conflict)
b. Realistic Interpretation of Law (Data Conflict)
c. Realistic Assessment of Likely Court Outcome (Data Conflict)
d. Realistic Assessment of Amount of Damages (Data Conflict)
e. Vindication (Interest or Structural Conflict)
f. Protection of a Principle or Value (Value Conflict)
g. Establish Precedent or Deterrence to Future Litigation (Interest Conflict)
h. Efficient Alternative to Court (Structural Conflict)
i. Opportunity to Go for a Jackpot (Structural Conflict)
j. Other Unmet Needs (Structural Conflicts)
2. Alternatives to Mediation (ATM)
a. Arbitrations
i. Conventional Arbitration
ii. High-Low Arbitration
iii. Final-Offer Arbitration (FOA)
iv. Med-Arb (Mediation-Arbitration)
v. Legal Neutral Evaluation
vi. Fact Finding Process
vii. Expert Evaluation
b. Private Judging
c. Summary Jury Trial
d. Mini-Trial
e. Court
Appendices
A. Decision Tree Plus Analysis
B. Sample Agreements to Mediate
C. Sample Mediator Retainer and Confidentiality Agreement
D. Sample Premediation Submission
E. Sample Opening Statements
F. Cultivating Information: Attentive and Proactive Listening
G. Cultural Differences
1. Glossary of Cultural Dimensions by John Barkai
2. Guidelines for Working with Interpreters in Mediations
3. Ethical Issues Facing Mediators and Attorneys in Cross-Cultural Disputes
4. Seven Guidelines for U.S. Trainers Abroad
5. IMI Inter-Cultural Criteria for Certifying Mediators
H. Final-Offer Arbitration Rules
I. List of Online Videos.