2 PerspectivesJanuary 2, 2009

How Close Are We? Another Way a Mediator Can Help

Have you ever wanted to know what the other side really wants in a case?  They’re sure to posture and ask for one thing, but have you ever wondered what they’re really looking for before everyone gets further entrenched?  There is a way to find out.

I learned how you can tell if you and the other side are really that far apart in a dispute with one of the world’s more experienced defendants. We had met before and a lot of money was at stake, and sending a settlement demand to these folks would have been pointless — no matter what I demanded it would be too much. I suspected we privately valued the case the same way, but nobody opens a case with his bottom line position. We’d have to litigate for years to More…

Categories: ADR, Arbitration, Miscellaneous, Settlement, Tactics

5 PerspectivesDecember 12, 2008

The Mediator’s Proposal: A Great Tool For Yesterday’s Disputes

It was a hot Friday afternoon in Miami, and everyone but the mediator had a flight to catch. The lawyers on the other side knew what they were doing, but we weren’t closing the gap. Sometimes impasse is a good thing, but not here — four conference rooms and a reception area full of lawyers needed to settle, but our steady path to resolution had stopped abruptly. What was the other side up to?

As our mediation closed, the mediator made a proposal — a “mediator’s proposal.” I knew immediately why we had reached an impasse. As I look back on that settlement it’s clear that, as effective as mediator’s proposals might have been back in the day, they aren’t the tool More…

Categories: ADR, Mediation, Settlement

Add Your PerspectiveOctober 17, 2008

How Do You Settle Halfway? Settlement Structures Part II

In You Can Win by Settling Halfway:  Settlement Structures Part I, we discussed when it might pay to settle halfway — when you might resolve parts of a dispute to “streamline the matter, limit expenses, and refocus the parties on resolving what’s left.”  While Part I outlined several high-level examples of how it works in theory, here’s a successful example to demonstrate how settling halfway can work for you.

What’s Really in Dispute?

I got called into a dispute between my client at the time and a recently departed executive.  The former executive disagreed with the compensation he was paid as he left.  Like many claims involving former execs, the stakes were high, and the emotions ran higher.  Both sides wanted to prove that they were right, and the case would not settle.  Once I really understood each side’s position — on the facts and in the broader context — an opportunity to settle halfway began to emerge. More…

Categories: ADR, Arbitration, Settlement, Strategy, Structures

Add Your PerspectiveOctober 7, 2008

Non-Binding Arbitration: Get Your Day in Court Without One Day in Court

Have you ever had a dispute over an amount that was too small to litigate but too big to leave behind?  These are some of the most difficult issues to resolve; they can strain the attorney-client relationship and, occasionally, they test the bounds of common sense.  Before you file that lawsuit, consider whether non-binding arbitration can help you avoid the irrational.

Although I didn’t know what it was called at the time, non-binding arbitration came in especially handy for me in a dispute my client had with an insurer a few years ago.  The matter was the last, minor claim on a long list the two had fought out, and who was really “right” in this case isn’t really relevant at this point.  The more important facts were:  (i)  the amount in dispute wouldn’t support a full-blown lawsuit; and (ii) despite the modest quantum, a lawsuit remained likely given the egos involved and the broader relationship between the parties.

Stumbling into Non-Binding Arbitration

I searched for a way to get a judgment on a smallish case with complicated facts, and it couldn’t be done here. More…

Categories: ADR, Arbitration, Negotiation, Settlement, Tactics