5 PerspectivesJune 7, 2010

Negotiating through Impasse: A Paper from the Archives

a .pdf copy of “Break that Impasse:  Practical Solutions to Eliminate Deadlock in Settlement Negotiations” is available here

Lately I have heard about impasse more often than normal — Marc Lanzkowsky posted 3 Settlement Techniques that Will Help Move a Case to Resolution on The Claims SPOT, which drove a great follow-on discussion about impasse among LinkedIn’s Commercial and Industry Arbitration and Mediation Group.  As the comments continued, I thought about how much we all try to avoid — or work through — impasse, and an old article of mine came to mind.  This is a quick post intended to reintroduce that article to the discussion.

Break that Impasse:  Practical Suggestions to Eliminate Deadlock

It seems like only yesterday, but in 2004 I co-presented  Break that Impasse: Practical Suggestions to Eliminate Deadlock in Settlement Negotiations to the Association of Corporate Counsel’s Annual Meeting in Chicago with an all-star group of copanelists, including Eric D. Green, Ross W. Stoddard, Melvin S. Merzon and Mark Tatelbaum.  The paper, available here, is more than a few years old and I wrote it before my mediation training (so all disclaimers apply), but “Break that Impasse” includes:

• 20+ pages of ideas about how to prevent and break impasse — written primarily from the client’s perspective;
• Over 100 footnotes to mediators, judges, lawyers, clients and others who contributed their ideas to the paper; and
• A sample mediator’s proposal form, supplied by copanelist Ross Stoddard.

Take a look at “Break that Impasse” the next time impasse approaches — I hope it helps.

Categories: ADR, Fundamentals, Mediation, Negotiation, Settlement, Tactics

5 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

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