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

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

Add Your PerspectiveDecember 9, 2009

Delivering Bad News in Negotiation: 3 More Tips

Last week we discussed why a small group is usually a better audience for bad news in Delivering Bad News:  How Big Is Your Conference Room? Yet if small group delivery is not an option, what else can you do to get a difficult message across?  Three tactics come to mind.

Manage Expectations

Long Before the Mediation Starts. Last year I wrote Managing Expectations:  An Unexpected Lesson on the Bus to Hertz, and the lesson holds true in conference rooms, too.  Not so long ago I had a case against an online retailer whose CEO enjoyed an irrational confidence in his case. With our mediation just a month away, I knew we had to move the CEO much closer to reality to get the case settled.  Rather than surprise him at mediation with documents and bad facts he hadn’t yet seen — like the guys in my post last week did to me — I spent a great deal of time More…

Categories: Communication, Fundamentals, Mediation, Negotiation, Settlement, Strategy, Tactics