3 PerspectivesJune 6, 2010

Risk Based Analysis: How Do You Make Your Next Move?

It’s  no secret I have been on a bit of a Decision Tree kick lately — I just spent two days in one of Marc Victor’s (fantastic) training sessions, and Settlement Perspectives’ series on this important topic continues to grow.  Today we’ll explore how one experienced mediator uses a similar approach to prepare mediator’s proposals, and how you can use the same process as you make your next settlement offer.

What Are the Chances Your Offer Will Be Accepted?

As I wrote my recent post on decision trees in mediation, accomplished mediator Jan Frankel Schau added her perspective on how she settles important cases on a related LinkedIn Commercial and Industry Arbitration and Mediation Group discussion.  Jan, who publishes Schau’s Mediation Insights, told us she frequently uses decision trees, but adds that a similar tool can be used to help parties determine the likelihood a counteroffer will be accepted:

I draw a distinction between a Decision Tree — which I use routinely to highlight the expenses and risks of litigation, from a Risk Based Analysis — which I use more sparingly in coaching parties about making a More…

Categories: Mediation, Negotiation, Settlement

6 PerspectivesApril 28, 2010

Avoiding the Limitations of Decision Trees: A Few Tips from Mediators Who Use Them

No tool is perfect, and decision trees are no exception.  A few of the comments on prior posts in this series have explored some of the problems mediators and advocates have with decision trees and what we can do about them.  Today we’ll explore both the problems some mediators see in decision tree analysis and how those mediators make the tool more effective for parties and their counsel.

Garbage In, Garbage Out

Garbage in, garbage out is a problem in all forms of data analysis.  In decision tree analysis every input — from numerical values to probabilities to the construct of the diagram itself — affects the output, or the expected monetary value of your case.  Los Angeles mediator Joseph C. Markowitz summed it up nicely in Quantifying Uncertainty:

One [kind of uncertainty that decision trees can never resolve] is the More…

Categories: Decision Trees, Mediation, Negotiation, Settlement, Tactics

3 PerspectivesApril 22, 2010

Decision Trees in Mediation: A Few Examples

It’s no secret that I believe decision trees can make a difference as you try to settle your next lawsuit, and my series on decision trees will tell you why.  But I’m not the only one.  Your comments to my prior posts, our follow-on discussions since then, and a little research confirm that a confident minority of mediators and litigators use them, too.  This post is the first of three over the next few weeks that will give you real-life examples of how decision trees are used to settle disputes.

How do mediators and advocates use decision trees in mediation? A month or two ago we had a great discussion among the Commercial and Industry Arbitration and Mediation Group on LinkedIn styled “Do You Use Decision Trees in Your Mediation Practice?” More than a few mediators and negotiators spoke up, with each providing insight into how decision trees can help get your case settled.  I’ll highlight some of those tips, and a few more from other sources, in this and subsequent posts over the next two weeks.

A Better Way to See the Dispute

Portland area mediator Debra Healy summarized the thoughts of many when she said that mediators can use decision trees as More…

Categories: Decision Trees, Mediation, Negotiation, Settlement, Tactics

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