Title: Mediation Representation: Advocating As A Problem-Solver In Any Country Or Culture
Author: Harold I. Abramson
Gladiatorial attorneys the world over are probably the single greatest barrier to a successful negotiated outcome. By not consciously adapting their style from the “I Gonna Win/You Gonna Lose” approach characterized by litigation and arbitration, attorneys representing clients in mediation can seriously impede, miss and even block the greater benefits for their clients potentially available from a negotiated outcome.
Mediation Representation sets out to value the role of the attorney in the mediation process when performed effectively. Without once being patronizing or lecturing, it sets out the numerous ways attorneys can help get the best possible outcome for their clients in the mediation context. It strives to make the attorney a better negotiator by, as the subtitle puts it, Advocating as a Problem-Solver in any Country or Culture. This diverse subject is neatly and logically clustered and laid out in a digestible and browsable format; the pages are full of perceptive and poignant tips gleaned by the author from years of research as well as experience as a mediator and educator in the US and internationally. Prof. Abramson pulls it all together into what he labels as a Mediation Representation Triangle, which consists of attorneys negotiating with the assistance of a mediator and a plan to advance interests, overcome impediments, and share information judiciously.
Alexander Graham Bell’s truism that “preparation is the key to success” is reflected with two chapters, together comprising a third of the book, dedicated specifically to preparing for a mediation (both preparing the case and preparing the client). It’s startling how many attorneys come to mediation expecting the mediator to do all the work, having little idea how to engage the mediator’s help, having not worked out their BATNA, and with a poorly prepared client. These issues, and more, are all fully covered.
Negotiation is weaved into the book from start to end. Most of us consider ourselves great negotiators, but the presence of a neutral with no power to impose a decision calls for a different (actually, a better!) approach to negotiation in order to extract the best outcome for the client. The book thoroughly contrasts positional and problem-solving approaches to negotiation – very helpful in psyching ourselves into the mediation approach to outcome generation. Actually, this is a pertinent book for anyone approaching a negotiation – whether in a mediation setting or not. The book also deals in some detail about how to select the right mediator, including how counsel can productively approach the other attorney about trying out mediation.
A key and unusual feature of Mediation Representation is its succinct coverage of cross cultural approaches to negotiation and how to manage them and bridge differences in the mediation process. There are extensive materials and training courses on cross cultural communication and negotiation, but here in 20 pages is a very handy primer – applicable, in our multi-cultural societies, to local negotiations and mediation as well as international cases. Although the author integrates references to culture and culture differences throughout the book, he unfortunately does not cover the vexing challenges of enforcing settlement agreements cross-border, and other cross-border dilemmas that can arise due to conflicting legal regimes. Overall, this is one of the best mediation handbooks available and a substantial contribution to influencing the mindset changes we attorneys need to make in resolving disputes with maximum benefit as early as possible.