10 PerspectivesMarch 30, 2010

Lawsuit Settlement: 7 Ways to Get There Faster, Better and Cheaper — The Presentation

Late last week I got the chance to present Lawsuit Settlement: 7 Ways to Get There Faster, Better and Cheaper to a great group of lawyers with a real stake in when cases settle at the Chief Litigation Officer Summit in Miami.  It’s always rewarding to speak with an audience that understands — and cares about — the topic, and this group of senior in-house lawyers reminded me why.

The PowerPoint, with Hyperlinks (and Directions)

After last week’s presentation I promised a few of the attendees I’d post a PowerPoint version of More…

Categories: ADR, Miscellaneous, Negotiation, Selected Posts, 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

Add Your PerspectiveMarch 19, 2010

Multi-Step Dispute Resolution Clauses: 7 Reasons They Work

As we have discussed before, the best way to spend less on litigation is to have less litigation. Yes, sometimes it is better to litigate, and yes, settlement talks are hollow if you can’t walk away from the negotiation table, but most clients prefer to avoid litigation when they can. So how do you accomplish that? The multi-step dispute resolution clause is a good start.

Back in my days as outside counsel I handled a major dispute for a Fortune 500 IT services firm involving one of its larger clients, and I got plenty of time to think about how, and why, tiered dispute resolution clauses work. As soon as I moved in-house, I added these clauses to KPMG Consulting’s standard contracts, and the results were outstanding — we litigated with our clients less and got back to business sooner. This post will give you a few reasons why you might want to include a multi-step dispute resolution clause in your next major contract.

A Definition for the Multi-Step Dispute Resolution Clause

The multi-step dispute resolution clause, sometimes referred to as an “executive escalation clause,” an “escalating levels of management clause,” or a “tiered dispute resolution clause,” is often discussed but not often defined. I define it More…

Categories: ADR, Arbitration, Mediation, Negotiation, 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