Goals for Representation in Mediation
The following instruction and score sheet provides a useful set of goals and criteria for attorneys representing clients in mediation.
Law students are encouraged to participate in mediation advocacy competitions in their schools and to try to qualify for the ABA regional and national competitions. For more information about these ABA competitions and other dispute resolution activities sponsored by the ABA, see http://www.abanet.org/dispute/21centuryattorney.html.
American Bar Association Section of Dispute Resolution Representation in Mediation Advocacy Competition
Judges’ Score Sheet
These criteria should be interpreted to favor problem-solving strategies in the competition. Although practitioners use a diversity of representation approaches, this competition is organized on the premise that the mediators and teams will use a problem-solving approach. The criteria cumulatively enlist judges to assess whether each team consistently and competently followed a problem-solving approach throughout the mediation session. The criteria should be applied to the performance of the attorney/client team not just the performance of the attorney. By judging the teams based on the same approach to representation, judges will be able to evaluate different teams on a comparable basis.
When these criteria refer to a problem-solving approach, the criteria refer to an approach in which negotiators learn about each other’s interests and BATNAs (Best Alternative To A Negotiated Agreement), brainstorm options, and select and shape a solution that meets their interests and, where appropriate, objective standards. When there are apparently conflicting interests (distributive conflicts), teams should first try problem-solving methods before resorting to positional strategies. In contrast, the classically positional negotiator generally starts with firm, extreme and opposite positions and then makes calibrated concessions until both sides are close enough to split the difference.
Before judging the competition, judges should read each side’s representation plan. Each representation plan provides essential background information that will help the judges interpret what they are observing. Each plan describes briefly (1) how the attorney and client plan to share responsibilities in the mediation session between them, (2) why they chose the particular allocation strategy, (3) the interests that the side plans to advance in the mediation session, and (4) the likely interests of the other client.
Please score each criterion on a scale of 1-7, with 1 as the lowest and 7 as the highest.
1= very poor
3= somewhat poor
5= somewhat good
7= very good
___ 1. Presentation of Case in Opening Statements and Throughout
- Presented facts and law in a way that could be heard productively by other side.
- Offered proposals in a way that reflected careful planning and skillful implementation.
- Accurately assessed and discussed litigation benefits and risks, as well as other consequences of failing to reach settlement (in joint session and/or caucus).
___ 2. Teamwork Between Attorney and Client
- Effectively divided responsibilities in light of client’s strengths and vulnerabilities.
- Communicated effectively with each other.
- Worked together as a coordinated team.
- Attorney ensured that client was able to make informed choice about settlement possibilities.
___ 3. Problem-Solving Relationship Building
- Established a problem-solving relationship with other side, if possible.
- Recognized other side’s interests and tried to satisfy them when possible given client’s interests.
- Took initiatives to convert other side into problem-solvers.
___ 4. Information Gathering and Communications with Other Side
- Used active listening skills to promote communications.
- Used appropriate questioning techniques to gather information.
- Tested assumptions and collected necessary information at appropriate times.
___ 5. Generating and Selecting Creative Options
- Generated range of legal and non-legal options to meet client’s interests, as well as interests of other side.
- Evaluated and selected options based on interests and, where appropriate, objective criteria.
- Actively encouraged the development of creative ideas.
- Effectively managed distributive features of dispute (effectively bridged any final gaps).
___ 6. Using Opportunities in the Mediation Process
- Responded appropriately to the mediator’s style.
- Used power of mediator over process to help break impasses and move toward resolution.
- Chose intelligently whether or not to use a caucus; if caucus used, used caucus effectively.
- Responded appropriately to developments that occurred during mediation, especially new information and unforeseen moves by other side.
___ 7. Advocating Client’s Interests
- Understood and advanced client’s legal and non-legal interests throughout the mediation process.
- Did not sacrifice client’s interests in order to be collaborative.
- Did not sacrifice client’s interests in order to seek competitive advantage.
___ 8. Self Analysis of the Team’s Skills
Students should begin the 10-minute period of team self-analysis by answering the following questions:
Self-analysis & Learning After the Mediation (Mediator is not present during the self-analysis.)
In reflecting upon the entire mediation, what specific problem-solving strategies did your team do well? Also, in what areas did you experienced difficulties and what would you do differently next time when facing a similar situation?
___ 9. Self-Analysis of Outcome
Students should continue the 10-minute period of team self-analysis by answering the following question:
How well did the outcome advance your client’s interests as presented in the written representation plan?
Based on this team’s answer, how adequately did it understand how well or poorly it advanced the interests of the client?