4 PerspectivesApril 22, 2010
It’s no secret that I believe decision trees can make a difference as you try to settle your next lawsuit, and my series on decision trees will tell you why. But I’m not the only one. Your comments to my prior posts, our follow-on discussions since then, and a little research confirm that a confident minority of mediators and litigators use them, too. This post is the first of three over the next few weeks that will give you real-life examples of how decision trees are used to settle disputes.
How do mediators and advocates use decision trees in mediation? A month or two ago we had a great discussion among the Commercial and Industry Arbitration and Mediation Group on LinkedIn styled “Do You Use Decision Trees in Your Mediation Practice?” More than a few mediators and negotiators spoke up, with each providing insight into how decision trees can help get your case settled. I’ll highlight some of those tips, and a few more from other sources, in this and subsequent posts over the next two weeks.
A Better Way to See the Dispute
2 PerspectivesMarch 22, 2010
It’s no secret that I went to Duke Law School and I’m happy to see the Blue Devils advancing through the NCAA Tournament brackets this year, but this isn’t a post about basketball. I wander off topic every now and then, but there are limits.
This post is about bracketing — one of the more important, and overlooked, aspects of negotiation. First, a summary:
In negotiation no number is irrelevant, and no proposal is ever forgotten. Every offer you make, every figure you float, and every potential path to settlement you communicate to the other side will forever impact your negotiations.
Negotiators ignore this rule at their peril.
What Are Negotiation Brackets?
The message from my client’s deal lawyer was as informative as it was economical: “We’re bracketed at 250 and 400.” With this shorthand he More…
2 PerspectivesFebruary 16, 2010
It’s been almost 20 years since my first mediation, and I still remember the rehearsed opening sessions from those days. Mediation after mediation began at 9:35 with a map of the day from the mediator’s manual: This is a creative new process; mediation is confidential; today we’ll explore “win-win” approaches to settling your case; there’s a lunch menu on the credenza; don’t leave until I tell you today’s session is over. There were a few more, but you get the point.
Since those early days I haven’t given much thought to why the mediator — rather than the parties — gets to end the session. But in a recent mediation headed for impasse the lawyer on the other side almost ended the day with “I guess there’s no reason to keep talking, is there?” in a late afternoon joint session, and I understood.
Who Will Be the First to Send a Message?
Mediation is admittedly a bit awkward, if not unnatural. For its success the process requires parties and their paid advocates to stop fighting long enough to work toward a compromise acceptable to all. A series of concessions, conditioned on reaching a settlement, ends in a deal or a return to conflict.
If settlement can’t be reached, most parties and advocates immediately look for a way to turn up the heat on the other side — to send a message reinforcing the consequences of not settling. While I have said before that a “failed” mediation is a perfect time to settle halfway, the traditional response is to remind everyone that More…
Add Your PerspectiveJanuary 27, 2010
The mediation had dragged for an entire day, and we hadn’t made much progress. The other side said they couldn’t give any more, and we wouldn’t, either. The mediator’s proposal that followed was the best deal we’d ever get and, frankly, it was the right number. But my client’s COO reacted instantly, calling in a “no” on his way home. Our answer was due to the mediator in in 24 hours.
As I prepared to discuss the mediator’s proposal with our executive team and the COO the next day I realized my client might have painted himself into a corner — after a good night’s sleep I was confident he would want to change his mind, but sometimes it’s not that easy.
Only Two Ways to Get the Case Settled
I debated how to settle the case that day, and there were only two ways to get it done: with my COO or without him. I could gather the facts and work to More…