1 PerspectiveMay 29, 2012

Why Settlement Counsel? A Lesson from the Scorpion and the Frog

“We do not ask our generals to be diplomats, nor our diplomats to be generals.”  William F. Coyne, Jr. used that quote to explain the concept of settlement counsel in a Negotiation Journal article over a decade ago, and I keep coming back to it.

Why does your litigator focus on what happened, rather than what you want?  Is there a reason she needs more depositions before she’s ready to talk settlement?  Why does she have a trial plan but not a settlement plan?

Why Your Litigator Does What She Does

Dallas-based settlement counsel Christopher Nolland recently told me that the story of The Scorpion and the Frog helps explain why we need special settlement counsel, and he’s right.  AesopFables.com tells the story as follows:

A scorpion and a frog meet on the bank of a stream and the scorpion asks the frog to carry him across on its back. The frog asks, “How do I More…

Categories: Miscellaneous,Negotiation,Selected Posts,Settlement,Settlement Counsel

2 PerspectivesAugust 17, 2011

Breaking Impasse in Mediation: The Book

Impasse in mediation is an important topic to mediators, lawyers and the clients they serve, and I’m no exception — links to my prior posts on breaking impasse in negotiation can be found here and here, and a .pdf of a longer paper I delivered more than a few years ago can be found here.  I’m happy to say that the New York State Bar Association has just published a helpful new resource that can help us all avoid impasse in settlement negotiations: Definitive Creative Impasse-Breaking Techniques in Mediation.

In the spirit of full disclosure, my chapter on “High-Low Agreements and More: Definitive Tools to Break Impasse in Mediation” is among those in the book, which contains 19 chapters filled with real tips and tactics you’ll be able to apply in your next mediation.  As you can see from the book’s Table of Contents and Contributor Biographies, our (persistent and helpful) editor Molly Kapper, J.D., Ph.D. pulled together some of the best mediation personalities and commentators in the business:

Editor: Molly Klapper, J.D., Ph.D.

Authors:

• Simeon H. Baum, Esq.
• Professor Vivian Berger
• John DeGroote, Esq.
• Julie Denny
• Hon. William A. Dreier
• Professor Dwight Golann More…

Categories: Mediation,Negotiation,Settlement,Strategy,Tactics

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

3 PerspectivesJune 6, 2010

Risk Based Analysis: How Do You Make Your Next Move?

It’s  no secret I have been on a bit of a Decision Tree kick lately — I just spent two days in one of Marc Victor’s (fantastic) training sessions, and Settlement Perspectives’ series on this important topic continues to grow.  Today we’ll explore how one experienced mediator uses a similar approach to prepare mediator’s proposals, and how you can use the same process as you make your next settlement offer.

What Are the Chances Your Offer Will Be Accepted?

As I wrote my recent post on decision trees in mediation, accomplished mediator Jan Frankel Schau added her perspective on how she settles important cases on a related LinkedIn Commercial and Industry Arbitration and Mediation Group discussion.  Jan, who publishes Schau’s Mediation Insights, told us she frequently uses decision trees, but adds that a similar tool can be used to help parties determine the likelihood a counteroffer will be accepted:

I draw a distinction between a Decision Tree — which I use routinely to highlight the expenses and risks of litigation, from a Risk Based Analysis — which I use more sparingly in coaching parties about making a More…

Categories: Mediation,Negotiation,Settlement