2 PerspectivesNovember 4, 2008

A Bird in the Hand: Just Send a Check to Settle Your Case

I have an old friend who told me how one of his plaintiffs’ cases — the one sure to go to trial — finally got resolved:  ”They kept hitting me with bigger and bigger checks until I had to settle.” He has a great story, but this post isn’t about settling big cases with big checks.  It’s about settling smaller cases with even smaller checks.

I recently wrote Non-Binding Arbitration:  Get Your Day in Court Without One Day in Court.  In that post I wrote how you can use a non-binding case evaluation to break your impasse:  ”The arbitrator issued his [nonbinding opinion], the parties immediately used it to frame their negotiations, and — after one more tactic from the other side that I’ll post about soon — we got the case settled.”   This post is about that “one more tactic.” More…

Categories: Negotiation,Settlement,Tactics

Add Your PerspectiveOctober 31, 2008

What Can Yard Signs Teach Us About Negotiation?

As a wide-eyed sophomore in charge of a campus political campaign in 1984 I pushed bumper stickers and buttons into the hands of as many supporters as possible to sway the undecided — if I could blanket the campus with my candidate’s bumper stickers, undecided voters would follow the lead of their neighbors and support him too, right?  But is that really why campaigns print bumper stickers? More…

Categories: Negotiation,Settlement

1 PerspectiveOctober 14, 2008

The Most Important Word in Negotiation

High-stakes deals attract some of the best negotiators, and it’s always fun to see the latest techniques in action.  Many of the most sophisticated dealmakers and lawyers are eager to show that they’re on the cutting edge of the negotiating game, impressing their clients with advanced moves from Getting to Yes to Start With No to countless others.  Sadly, they often miss the point.

Why Credibility Is Critical to Negotiation

Somehow the audience for all our efforts is forgotten. No matter how little we actually see one another, negotiation still happens between people.  People take positions, people make decisions, and people close deals.  And much of what they do results from what you say and do. More…

Categories: Communication,Fundamentals,Negotiation,Settlement

Add Your PerspectiveOctober 10, 2008

You Can Win By Settling Halfway: Settlement Structures Part I

“If you are going to do a half-ass job, don’t do it at all.”  My dad gave me that advice years ago, and I never forgot it.  But if you have an important dispute, settling it halfway may be a victory in itself.

“Settling halfway” isn’t complicated; it’s just what the name implies.  In disputes where you aren’t ready — or able — to settle the entire case, look for ways to eliminate parts of it to streamline the matter, limit expenses, and refocus the parties on resolving what’s left.

The Idea Behind Settling Halfway

After several years of defending what was then KPMG Consulting, I had one of those “aha” conversations with an outside counsel I really respect.  As we brainstormed on how to eliminate some of the inefficiencies inherent to litigation, he reminded me of a difference between our perspectives:  in-house litigators are free to ignore “unnecessary rabbit trails,” skip secondary witnesses, and forego tactics that have little likelihood of success, while most outside counsel feel compelled to leave no stone unturned — and they usually need written confirmation for the file when they abandon anything. More…

Categories: Arbitration,Negotiation,Settlement,Strategy,Structures,Tactics