5.11 Problem-Solving Mediation Will Affect Advocacy Strategy.27
Where a mediator is a problem solver/neutral, the mediator may structure and control the mediation to discourage position bargaining. So, a mediator may forbid opening offers.
The mediator may refuse to evaluate either the facts or the legal outcome. The mediator may discourage individual caucuses with either side or lawyer in order to keep the parties hearing and trusting each other, and not sowing distrust of the mediator, by engaging in confidential communications with one side or the other.This structure affects a number of advocacy strategies in mediation, including an understanding that opening statements are not directed to the mediator, but directed to the opposing party. The opening might describe the history of the dispute, but not detail positions, favoring instead statements of broad goals and interests, to arm the negotiator to facilitate creative problems solving.
In addition to affecting the substance of what the advocate presents, a problem-solving mediation will affect the advocates tone, language, and structure of presentation. In addition, the advocate will be suggesting ways the mediator can facilitate resolution of the dispute. This requires an analysis of the type of dispute, (whether the dispute is about data (proof), principle, a need for vindication, or is a matter of a misunderstanding or problem in communication.) Each type of dispute will require different mediation tools, and the advocate must realize that how these disputes are framed or characterized can greatly affect the outcome.