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 PerspectivesDecember 15, 2009

Insurance Coverage: 4 Rules and 10 Tips for Policyholders

When the big case comes in, will you be ready for it?  As you work to better understand your story, lock down your documents, and brace for the PR impact, what else do you need to worry about?  Unfortunately insurance coverage is often way down the list — a mistake most don’t realize until it’s too late.

Recently the ACC Docket featured a piece that Wendy Toolin Breau and I coauthored on managing insurance relationships in the midst of significant litigation, entitled “‘Bet the Company’ Litigation from a Policyholder’s Perspective”.  Although you may want to read the entire article when your next big case comes in, the 4 rules and 10 tips we discuss appear below.

Preserving Insurance Coverage:  4 Rules

Insurance is a practice area unto itself, and there are few rules that apply in all situations.  But I have never seen an exception to these four:

1. Always act like a reasonably prudent insured. When confronted with a decision, what would you do if you were not insured?
2. Never try to outsmart yourself. Never rely on colluding with More…

Categories: Mediation,Miscellaneous,Negotiation,Settlement,Strategy

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

2 PerspectivesFebruary 6, 2009

Claims for Attorneys’ Fees: How Rule 68 Can (Sometimes) Help

Most lawyers in federal court believe that Rule 68 isn’t much of a threat, and for the most part they’re right. We discussed why this is true previously, but in that same post we highlighted one noteworthy exception: Rule 68 can cut off plaintiffs’ claims for attorneys’ fees in some cases. Today we’ll discuss when that might be, and how you can make Rule 68 work for you.

Rule 68 and Attorneys’ Fees: The Law

The General Rule. As we discussed more fully in Part I of this series, the text of Federal Rule of Civil Procedure 68 imposes a penalty on a plaintiff who refuses More…

Categories: Negotiation,Rule 68,Strategy