2 PerspectivesDecember 4, 2009

Delivering Bad News in Negotiation: How Big Is Your Conference Room?

The conference table had 40 chairs, and my client’s team filled almost half of them.  We had been asked to show up with the folks needed to get a deal done, and the backchannel weekend chatter had all been positive.  As the meeting began, our optimism crashed as the other side went on the attack, denying my client’s most important request and questioning why it had ever been included.

People usually need to hear the truth whether it’s convenient or not, but there’s more than one one way to convey a difficult message.  How often have you seen someone delight in dropping bad news onto the conference table as the meeting begins?  The adrenaline rush might satisfy some, but does this approach do any good?

Thank You for Your Interest

The lawyer who delivered the bad news to my team that day prided himself in his aggressive persona, and his performance was true to his reputation.  Unfortunately his glee was short-lived; my team and I worked night and day to More…

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

5 PerspectivesAugust 16, 2009

CPR Publishes Early Case Assessment Guidelines

You can’t settle your case before you know what it’s worth — or at least you shouldn’t — so we discussed why it’s best to value your dispute before settlement discussions start a few months ago.  This fact has driven an entire series on Early Case Assessments here on Settlement Perspectives, and it’s clear I’m not the only in-house ECA fan out there.

The International Institute for Conflict Prevention & Resolution, known also as the CPR Institute, has recently published CPR’s Early Case Assessment “ECA” Guidelines (2009), which are designed to “set forth a process designed to help More…

Categories: ECA, Tactics

2 PerspectivesJuly 18, 2009

Ambiguities in Rule 68: Why Are They Relevant to You?

If you see an ambiguity in a rule, is it your job to fix it? Maybe it is, maybe it isn’t, but one thing’s for sure: until the rule changes, you have to deal with it as it is. Like it or not, uncertainty creates risk as well as opportunities — for you and for the other side. Whether you react to either is up to you.

This isn’t the Rule 68 Blog (despite our introduction to Rule 68 and an entire series on the rule already), but a recent article in the Minnesota Law Review merits a return to one of our favorite topics. Danielle M. Shelton’s recent article, “Rewriting Rule 68: Realizing the Benefits of the Federal Settlement Rule by Injecting Certainty into Offers of Judgment,” suggests how we can fix Rule 68 like our Civil Procedure professor might have wanted — but along the way it thoroughly explores uncertainties created by Rule 68 that litigators ignore at their peril.

Can Rule 68’s Ambiguities Drive Settlements?

Professor Shelton makes a few critical points about the uncertainties created by Rule 68 — and why lawyers for both sides should care: More…

Categories: Rule 68, Settlement, Tactics

3 PerspectivesJanuary 2, 2009

How Close Are We? Another Way a Mediator Can Help

Have you ever wanted to know what the other side really wants in a case?  They’re sure to posture and ask for one thing, but have you ever wondered what they’re really looking for before everyone gets further entrenched?  There is a way to find out.

I learned how you can tell if you and the other side are really that far apart in a dispute with one of the world’s more experienced defendants. We had met before and a lot of money was at stake, and sending a settlement demand to these folks would have been pointless — no matter what I demanded it would be too much. I suspected we privately valued the case the same way, but nobody opens a case with his bottom line position. We’d have to litigate for years to More…

Categories: ADR, Arbitration, Miscellaneous, Settlement, Tactics