Add Your PerspectiveApril 1, 2010

The Multi-Step Dispute Resolution Clause: A Few Reasons Why Clients Like Them

Last week we defined multi-step dispute resolution clauses and explored why a dispute resolution framework, negotiated before the contract is signed, can help businesses avoid litigation in many cases.  This post will give you a few more reasons why your client might want a multi-step dispute resolution clause next time — even if a dispute seems unlikely.

To better understand why I spoke with my longtime transaction counsel Colleen Vossler last week, and she made her clients’ case clearly:

In my experience many clients with long-term contracts understand the intrinsic value of creating, at the outset of the relationship, a roadmap to follow when disputes arise. Importantly, the client shares the same roadmap with the other party – rather than creating separate roadmaps when the dispute is upon them. Clients who have experienced conflicts in long-term contracts, where the preservation of the relationship may have more value than in a short-term contract, often view these clauses as an insurance policy for when a dispute arises.

The “roadmap” provided by a multi-step dispute resolution clause More…

Categories: ADR, Communication, Negotiation, Settlement

1 PerspectiveMarch 22, 2010

Another Look at How the Brackets Work

It’s no secret that I went to Duke Law School and I’m happy to see the Blue Devils advancing through the NCAA Tournament brackets this year, but this isn’t a post about basketball.  I wander off topic every now and then, but there are limits.

This post is about bracketing — one of the more important, and overlooked, aspects of negotiation.  First, a summary:

In negotiation no number is irrelevant, and no proposal is ever forgotten.  Every offer you make, every figure you float, and every potential path to settlement you communicate to the other side will forever impact your negotiations.

Negotiators ignore this rule at their peril.

What Are Negotiation Brackets?

The message from my client’s deal lawyer was as informative as it was economical:  “We’re bracketed at 250 and 400.”  With this shorthand he More…

Categories: Communication, Fundamentals, Negotiation, Settlement, Tactics

7 PerspectivesMarch 11, 2010

Toward Better Client Service: A Few Questions for Outside Counsel

In a world of alternative fees, law firm convergence, the ACC Value Challenge and more, what does the client really want?  Is it lower fees, predictable expenses, more “value” for the company’s legal dollar, or something else? What’s the best way for a law firm to respond?  It turns out that clients are eager to share the answers to all these questions — all you have to do is ask.

A few months ago the lawyers at DrinkerBiddle did just that — they asked.  The firm invited a few of us with real experience as clients to the firm’s partner retreat to share our perspectives on client service.  They got what they asked for.

The Question Outside Counsel Don’t Ask Often Enough

As soon as we began our talk it became clear that I wasn’t the only one who had thought about the law firm/client relationship before we got there.  One of my co-panelists, P.H. Glatfelter Company’s GC Thom Jackson, started by sharing a simple question that outside counsel apparently don’t ask him often enough:  More…

Categories: Communication, Fundamentals, Miscellaneous, Settlement

Add Your PerspectiveMarch 4, 2010

A Settlement Lesson From “Switch”: Who Does Your Opponent Think He Is?

Longtime Settlement Perspectives readers know that I’m a big fan of Chip and Dan Heath. Their first book, Made to Stick, inspired posts back and forth with the authors on why you might not want to send a message in negotiation, and the rest of Made to Stick continues to color my view of message “stickiness” — a term the Heath brothers contributed to today’s communication lexicon.

With advance warning from Mitch Joel, I eagerly awaited my copy of the Heath brothers’ new book, Switch: How to Change Things When Change Is Hard. Like Made to Stick, Switch ostensibly has nothing to do with negotiation, but like its predecessor Switch backs into a settlement insight important to all of us.

The Identity Model of Decision Making

As with most concepts, Switch defines the identity model of decision making early on:

In the identity model of decision making, we essentially ask ourselves three questions when we have a decision to make: Who am I? What kind of situation is this? What would someone like me do in this situation? Notice what’s missing: any calculation of costs and benefits.

According to the Heath brothers, “we adopt identities throughout our lives” that More…

Categories: Communication, Mediation, Negotiation, Settlement