2 PerspectivesMarch 1, 2010

What Will She Tell Her Husband?

When was the last time you were in mediation and the other side just didn’t “get it”? You have what you need to win the case — documents that demonstrate the fraud, confirm the negligence, or whatever — but the other side just won’t go away. You offer a few dollars so you’ll be done by lunch, but she still won’t give in. Why not?

Why won’t the other side capitulate? The answer isn’t in the conference room, and it’s not in the documents. The reason your case won’t settle — at least not just yet — may be at a table far away.

The Smartest Guy at His Table That Night

I have given a lot of thought lately to a cluster of closely related negotiation concepts, each of which ultimately leads to the kitchen table:

• managing expectations;
• acceptance time;
• saving face; and
• the irrevocable offer.

Years ago a senior trial lawyer I really admire told me a story about how More…

Categories: Communication, Mediation, Negotiation

2 PerspectivesFebruary 16, 2010

In Mediation, Who Gets To Say “We’re Done”?

It’s been almost 20 years since my first mediation, and I still remember the rehearsed opening sessions from those days. Mediation after mediation began at 9:35 with a map of the day from the mediator’s manual:  This is a creative new process; mediation is confidential; today we’ll explore “win-win” approaches to settling your case; there’s a lunch menu on the credenza; don’t leave until I tell you today’s session is over. There were a few more, but you get the point.

Since those early days I haven’t given much thought to why the mediator — rather than the parties — gets to end the session. But in a recent mediation headed for impasse the lawyer on the other side almost ended the day with “I guess there’s no reason to keep talking, is there?” in a late afternoon joint session, and I understood.

Who Will Be the First to Send a Message?

Mediation is admittedly a bit awkward, if not unnatural. For its success the process requires parties and their paid advocates to stop fighting long enough to work toward a compromise acceptable to all. A series of concessions, conditioned on reaching a settlement, ends in a deal or a return to conflict.

If settlement can’t be reached, most parties and advocates immediately look for a way to turn up the heat on the other side — to send a message reinforcing the consequences of not settling. While I have said before that a “failed” mediation is a perfect time to settle halfway, the traditional response is to remind everyone that More…

Categories: Mediation, Negotiation, Tactics

Add Your PerspectiveJanuary 27, 2010

New Information: One Way to Help Your Client Save Face

The mediation had dragged for an entire day, and we hadn’t made much progress. The other side said they couldn’t give any more, and we wouldn’t, either. The mediator’s proposal that followed was the best deal we’d ever get and, frankly, it was the right number. But my client’s COO reacted instantly, calling in a “no” on his way home. Our answer was due to the mediator in in 24 hours.

As I prepared to discuss the mediator’s proposal with our executive team and the COO the next day I realized my client might have painted himself into a corner — after a good night’s sleep I was confident he would want to change his mind, but sometimes it’s not that easy.

Only Two Ways to Get the Case Settled

I debated how to settle the case that day, and there were only two ways to get it done: with my COO or without him. I could gather the facts and work to More…

Categories: Communication, Mediation, Negotiation, Settlement, Tactics

6 PerspectivesDecember 31, 2009

A Simple Thank You

Yesterday I got to spend a little time with Michael Maslanka, whose Blawg 100-listed Work Matters site many of you might know.  As Mike and I shared ideas and perspectives on Web 2.0, blogging in general, and the true sense of community that drives it all, I reflected a bit on 2009 and the people and personalities that make Settlement Perspectives what it is.

While that first post of 2009 seems like only yesterday, a lot has happened since then.  Through it all many of you have subscribed to, commented on and forwarded the posts you have seen here, and for that I cannot thank you enough.

In addition to the active readership we have at Settlement Perspectives, several prominent bloggers and publications have linked to our posts.  Following up on a great idea I saw earlier this week on the Loree Reinsurance and Arbitration Law Forum, I take this opportunity to highlight many of those blogs and publications as a way to say “thank you”.

Decision Tree Analysis And More

Early in the year we did a series on decision trees and how to use them more effectively in mediation and litigation.  The series generated some interesting discussions, including:

• The National Law Journal’s “Corporate Warfare Has to Make Business Sense These Days”, written by Michael Cavendish — a business litigator who knows what questions to ask and who understands where the practice of law is headed;
• Litigation Accounting for In-House Counsel at the IP ADR Blog, now Commercial ADR – Commercial Solutions to Justice Problems, which is a new initiative from talented trainer and mediator Victoria Pynchon;
• Diane Levin’s post A round-up of must-read articles for professional mediators, which More…

Categories: Blogging, Negotiation