1 PerspectiveOctober 7, 2008

Non-Binding Arbitration: Get Your Day in Court Without One Day in Court

Have you ever had a dispute over an amount that was too small to litigate but too big to leave behind?  These are some of the most difficult issues to resolve; they can strain the attorney-client relationship and, occasionally, they test the bounds of common sense.  Before you file that lawsuit, consider whether non-binding arbitration can help you avoid the irrational.

Although I didn’t know what it was called at the time, non-binding arbitration came in especially handy for me in a dispute my client had with an insurer a few years ago.  The matter was the last, minor claim on a long list the two had fought out, and who was really “right” in this case isn’t really relevant at this point.  The more important facts were:  (i)  the amount in dispute wouldn’t support a full-blown lawsuit; and (ii) despite the modest quantum, a lawsuit remained likely given the egos involved and the broader relationship between the parties.

Stumbling into Non-Binding Arbitration

I searched for a way to get a judgment on a smallish case with complicated facts, and it couldn’t be done here. More…

Categories: ADR,Arbitration,Negotiation,Settlement,Tactics

1 PerspectiveSeptember 19, 2008

One Use for an Unnecessary Confidentiality Clause

We all know that confidentiality clauses keep information private, but is there a reason to insist on one if you don’t care who discovers the information you are trying to protect?  Would there ever be a reason to protect the price you paid for your house with a confidentiality clause?  Sure there is – just ask my real estate agent. More…

Categories: Negotiation,Tactics

2 PerspectivesSeptember 16, 2008

Why We Can’t Just “Cut to the Chase”: Acceptance Time in Negotiation

Not so long ago I was in Cleveland mediating a fairly complex commercial dispute.  My client had a plane to catch at the end of the day but, as is often the case, he really wanted a good deal.  Based on each side’s positions and the “dance” to that point, we both knew where the case would probably settle.  At about 3:00 in the afternoon he looked at his watch and asked a question most of us have heard before:  “Why don’t we just cut to the chase, offer what it’s going to take to settle this thing, and get out of here?”

“Cut to the Chase” Is Not a Negotiation Term

I recently learned that Hollywood, rather than frustrated negotiators, brought us the phrase “cut to the chase.”  Like today, good movies from the early days of talking pictures frequently ended with a chase scene.  “Obligatory romantic storylines” that weren’t exactly the best part of the movie often preceded the chase, according to The Phrase Finder.  Unfortunately, getting from the obligatory romance to the end wasn’t always smooth — Wikipedia tells us that, at some point, “an inexpert screenwriter or director, unsure how to get to the climax, would just make an abrupt transition, known as a cut.”

The Chase Scene Doesn’t Work Without the Rest of the Movie

While experienced negotiators may realize it a bit sooner than everyone else, at some point we all begin to see where our deal is headed. More…

Categories: Fundamentals,Mediation,Negotiation,Settlement

5 PerspectivesSeptember 12, 2008

Managing Expectations: An Unexpected Lesson on the Bus to Hertz

A few weeks ago I landed in Baltimore to find all the glamour that usually greets the business traveler: a wait at the bus stop better described as steamy than hot, a luggage rack designed to fit everyone’s bag but mine, and a recognition that I didn’t really know the way to my dinner meeting after all.  I soon encountered a negotiation technique ignored by some of the most experienced negotiators – a technique that worked on me that day and can work for you.

It’s Only 8 Minutes

Moments after the bus doors closed I checked the time and pondered how I would jam a full day into what was left of it.  Thirty seconds later, as I began to envision arriving at my car, a soothing voice came over the intercom and said:  “The ride to the rental car center will take approximately 8 minutes.  Please sit back and enjoy the ride.”  Or words to that effect.  While in retrospect it seems that there must have been a closer place to put the rental cars, I did as I was told.  Once I got to my car and through Hertz “security” I realized what had happened – the bus driver had managed my expectations.  And it had worked. More…

Categories: Communication,Fundamentals,Negotiation,Settlement