It’s hard to imagine a better audience than the Dallas Bar Association’s Bench Bar Conference to discuss litigation, settlement, and new ways to look at both.  I recently got the chance to do just that, and the talk — and the debate that followed — were even better than I had imagined.

Clients often have a different perspective on settlement than their lawyers, and we had fun exploring why.

No, we didn’t start with stories about settlement.  We began with the Zig Ziglar’s take on how a newlywed couple cooked their fist roast — and we decided that just because we’ve been settling cases one way for the last 30 years doesn’t mean we need to settle cases the same way tomorrow.

I won’t repeat the whole talk here, but a few highlights include:

• The quote from one of my old clients that first put it all into perspective for me:  “I’m not in the litigation business.  I’m in the business business.”
• Why — and how — clients are different from the lawyers they work with;
• How interests, rather than positions, really can serve as the foundation for a better settlement approach;
• What Stage 3 Trust is, and why it’s important to you; and
• A few examples of settlement processes — some of which are summarized here — that might work for your clients.

And it wasn’t all about settlement, either.  Since the power to negotiate is the power to walk away, we talked a bit about Early Case Assessment, what better settlement processes can do for courts’ dockets, and more.

Take a look at Settlement the Way Your Clients Want It — you’ll be glad you did.

I recently had the pleasure of presenting Negotiation Ethics: From Oxymoron to Everyday Practice to the Mississippi Water Resources Association’s 2013 Educational Conference in Vicksburg — and I think we all learned something in the process.

As you can imagine, a talk on negotiation ethics for engineers is a bit different than one to lawyers, but a few of the quotes that resonated with the MWRA’s membership apply to lawyers, too.  A great example is this one from Warren Buffett:

It takes 20 years to build a reputation and 5 minutes to ruin it.  If you think about that, you’ll do things differently.

and another is this one from Stephen M. R. Covey’s The Speed of Trust:

When trust is low, in a company or in a relationship, it places a hidden ‘tax’ on every transaction:  every communication, every interaction, every strategy, every decision is taxed, bringing speed down and sending costs up.

While the talk might have explored the formal boundaries that guide negotiation ethics, the story of the boiling frog — which Bob Bennett once told to my Legal Team better than I ever will — resonated even more.  There are way to know you’re lost, and after this talk I think the MWRA’s members know a few more.

Take a look at Negotiation Ethics: From Oxymoron to Everyday Practice — you’ll be glad you did.

It’s no secret that I’m a fan of the Settlement Counsel concept — I’ve written about it, I’ve published an Updated List of Settlement Counsel, and I’m speaking about the idea in practice with Gary McGowan and Christopher Nolland today at the 15th Annual Section of Dispute Resolution’s Spring Conference.

For lawyers and clients wanting to learn more, a quick Internet search for “Settlement Counsel” doesn’t easily lead to the most informative — and free — resources, so I pulled together a list of links to where you might want to start.  Naturally, if you think I missed a good one, please let me know.

Settlement Counsel Hyperlinks

• Kathy A. Bryan, When ‘Winning’ Is the Expensive Solution, LEGAL TIMES (Apr. 16, 2007).
• Kathy A. Bryan, Why Should Businesses Hire Settlement Counsel?, 2008 J. DISP. RESOL. 195.
• John DeGroote, Who Serves as Settlement Counsel?  The (Updated) List, SETTLEMENT PERSPECTIVES L. BLOG (June 11, 2012).
• John DeGroote, Why Settlement Counsel? A Lesson from the Scorpion and the Frog, SETTLEMENT PERSPECTIVES L. BLOG (May 29, 2012).
• John Lande, The Movement Toward Early Case Handling in Courts and Private Dispute Resolution , 24 OHIO ST. J. ON DISP. RESOL. 83, 115-20 (2008).
• James E. McGuire, Why Litigators Should Use Settlement Counsel, 18 ALTERNATIVES TO HIGH COST LITIG. 6 (June 2000).*
• Gary Mendelsohn, Lawyers as Negotiators, 1 HARV. NEGOT. L. REV. 139, 139-67 (1996).
• Charles E. Miller & Peter W. Morgan, A “Best Practice” ADR Strategy in IP Litigation, 17 N.Y. ST. B. ASS’N 3, 3-5 (2008).
• Jack Montgomery, The Case for Settlement Counsel, ME. LAW. REV. (June 21, 2012).
• Alan Rudlin, The case for separate settlement counsel in the ADR process, VA. LAW. WKLY. (Apr. 6, 2012).
• SPECIAL SUPPLEMENT:  Analyzing Company ADR Systems Practices: Settlement Counsel; Problems with Billable Hours; and more, 22 ALTERNATIVES TO HIGH COST LITIG. (2004).*
• Gordon Tarnowsky & Noel Rea, Settlement counsel: A new approach to resolving difficult issues, THE LAW. WKLY. (Sept. 12, 2008).
• Scott Van Soye, Settlement Counsel: A New Trend in Litigation?, ADR TIMES (Apr. 21, 2012).

Take a look at some of these resources on Special Settlement Counsel.  You’ll be glad you did.

*A special thanks to our friends at Alternatives, who provide a free resource for CPR Institute members but who normally charge nonmembers for articles such as James E. McGuire’s article and the Alternatives Special Supplement listed above.  For those who’d like more on Settlement Counsel from Alternatives, the balance of their publication is accessible for a fee on the Wiley Online Library’s Alternatives Page.

A special additional thanks to Keaton Forcht for his assistance with this list as he finished his final year of law school.

As a longtime participant in the mediation process my primary focus has been its impact on my clients’ litigation — it’s one way cases get resolved, which saves us all money, time, risk, and more.  But yesterday I got another perspective on mediation, and I was reminded that it is, truly, Something Bigger.  My perspective came from Gene Roberts at North Texas Negotiations who, along with Adam McGough, chairs this year’s Annual Conference for the Texas Association of Mediators.

Gene’s remarks begin with the traditional perspective of a conference chair, but the message he gets to is unmistakable:

The conference is run by volunteers. There’s no paid staff. We’ve done our best and we ask for your indulgence if something unexpected happens. It’s not for want of planning or trying.  Life has not afforded Adam and me the necessary reprieve to handle everything perfectly, but we’ve done our best and will continue to do so. Please know that we’ve put every bit of time, energy, and effort to make this conference one that will benefit you and ultimately, the public we serve. We’ve done everything we can to provide you with the most inspiring, genuine, and dedicated people we know. We especially want to thank two members of your board of directors, Meg Walker and Toylaine Spencer for their hard work, behind the scenes, in putting this conference together.

Adam and I want to think some people who have put up with us for the last year and while they are not members of TAM, they have played a crucial role in this conference’s success: our wives, Lacy McGough and Celeste Roberts, and our children Noah, Cooper, Eli, and Jackson. They’ve spent nights and weekends without us while we’ve worked on this conference. Lacy and I spent Valentine’s Day of 2012 looking at hotel properties. She’s spent a lot of time helping to plan the conference and managed to have Eli last month in a complicated delivery. Celeste spent time stuffing your conference bags, allowing swag to cover our living room floor, and putting up with me. Celeste joked with me on Sunday that she’ll be happy when this conference is over because she’d like to have her husband back. This may be an example of being careful what you wish for. Both of our families have sacrificed in many ways over the last year. But they do so with great joy because they believe in us, they believe in the mission of this organization, and they believe in this profession. So to Lacy, Celeste, Noah, Cooper, Eli, and Jackson, “thanks so much.”

This conference is the most important conference in the history of TAM. This conference is the most important in your professional career. Mediation is at a tipping point in Texas and time is short: will we go over the cliff, or can we continue this wonderful public service called mediation. We hope this conference will help prepare all of us for the next leg of this journey.

When Adam and I started to put this conference together over a year ago, one of our first questions what “what’s our theme.” Adam conceived of this theme of something bigger. The thought was, at that time, that we needed to take the good things that mediators do and try to expand it to places outside of the courthouse. So that a new graduate of a mediation program doesn’t thinks that the first step in their business plan is to go to the courthouse, drop off some resumes, and wait for the work to come rolling in. We needed to think bigger. Our skills, our passion, our abilities are bigger than just the courthouse.

But things were percolating in the background, even before we were planning.

On August 25, 2011, a group of prominent attorneys representing plaintiffs, defendants, and distinguished trial lawyers—people who usually agree on absolutely nothing— signed their names to this statement in a letter to the Texas Supreme Court:

“Finally, mediation has become viewed by many as expensive, time consuming and inefficient. This is antithetical to the letter and spirit of House Bill 274. We propose, as an additional incentive to parties to use the expedited trial procedure, that mediation will not be required in cases submitted to the procedure.”

As a result of that letter, and very little deliberation and no empirical evidence, the Texas Supreme Court issued a proposed rule in December that would have prohibited trial court judges from ordering civil cases under $100,000 to mediation. There were four exceptions: family law, probate, tax, and medical liability. Which leads to the question if mediation is “expensive, time consuming, and inefficient” why impose it upon families, those going through the probate process, tax disputes, and medical liability claims? Why is mediation okay for them, but not for everyone else?

What a contrast to 1987 when mediation was formally codified in Texas, and people were writing that mediation was an “Innovative Approach to Solving Problems Efficiently.” And that ADR “serves as a vital complement to our formal justice system.” What a difference 25 years makes.

Through a lot of hard work in a small window of time, the mediation community, along with others in the legal and business community came together, wrote over 300 letters to the Texas Supreme Court, and the court changed the proposed rule, allowing these expedited cases to go to mediation, but limiting the time of the mediation to 4 hours and capping the fees that the mediator can charge to two times the filing fee.

Since that letter of August 25, 2011, we’ve learned that we have no natural allies. No one stands up and says “What about the mediators?” And most importantly, no one stood up and said “What about the parties.”

Why did some people who are the leaders in civil litigation in Texas say to the Supreme Court that mediation is “expensive, time consuming, and inefficient.” Why do they have that opinion? Why are they willing to say it in writing to the highest court in this state? Why are they willing to sign their names—and their reputations—to such a statement?

I’ve been told that when you point a finger at someone else, you’ve got three more pointing back at you.

The events of August 25, 2011, and since then, should be a wakeup call to us individually and to us as a profession. Very smart people, at the top of their games and the top of their professions, were willing to say that what we’ve been preaching for 25 years—that we are less expensive, quicker, and more efficient—isn’t true.

So we must change our thinking. We must be thinking about Something Bigger. And we must start that change that right now.

This is the reason that we’re going to physically share the same space for most of our time together. It was Benjamin Franklin who said “We must all hang together, or assuredly we shall all hang separately.” We’ve got to hang together to protect and promote this thing that we all cherish called mediation. There is no better time for us to start hanging together than right now.

We’ve designed this conference to push you.  Some of our talks will be uncomfortable. We don’t have a lot of long, leisurely breaks because our profession can’t afford that. We’re not going to have short days with lots of “fellowship” opportunities because we can’t afford that. We’ve got to be adding tools to our toolboxes, sharpening the tools that we currently have, and we’ve got to be about Something Bigger.

The environment that we now find ourselves—economically and now structurally—is why we must have Peter Robinson from Pepperdine and Randy Lowry from Lipscomb here, to provide a foundational look of how we can shape our future. We must have Doug Noll here to talk to us about decisional errors that folks make in mediations. We must have Jim Melamed here to talk to us about how to use technology. We must have Lee Jay Berman show us how to use our personal power in mediations. We must hear from John DeGroote about the importance of decision-trees as a tool to help our clients. Eric Galton must tell us the stories of the transformative power of mediation. We must listen to Justice Thomas’ experience about how to mediate the family law case. We must hear from Jean Whyte about how to mitigate disputes before they turn into litigation. We must hear from Ken Burdin, Chris Nolland, Melanie Grimes, Will Pryor, and Doug Skierski about how to practice this craft called mediation in this brave new world. And we must hear from Max Glauben, Bernard Nguyen, and Celestin Musekura who’ve experienced the horrific extremes of conflict yet still manage to live lives of peace and peacemaking. We must hear from Ken Cloke about how we as mediators can help people to have the difficult conversations. We must hear from the very best in our profession so that we can better ourselves and more importantly, help those we serve. We must be thinking about Something Bigger.

And we must hear from Karen Blessen. Less than a month ago, there was an early morning shooting at an apartment complex here in Dallas. It barely made the news. Two people allegedly killed by their downstairs neighbor. 5 children spared. 4 of them were at their local elementary school at the time of the shooting. Karen, a Pulitzer prize winning graphic artist, now teaches peacemaking to school children here in Dallas. She shows children that there is a role for peacemakers and that society will honor you if you choose to be a peacemaker—a very different philosophy than what we’ve recently seen with our others in position of leadership. Karen’s taught peacemaking at Hotchkiss Elementary school, the school where four of those children attend and where my wife is the school’s nurse. Our community now has five children, one of whom was 2 months old, no longer have a mother because of a neighbor on neighbor conflict escalated to murder.  What if they had known about mediation? Who says that small matters don’t deserve mediation? Even those so-called small matters deserve Something Bigger.

So, for the next two days, Adam and I will push you. We want you to think about mediation in new and exciting ways. Think about this: professionally, we want to get involved in other people’s disputes. We are mediators. We are the ones who want to meet people at one of their lowest points in their lives. We are mediators. We are the ones in the room who are the optimists. We are mediators. We say that there is a better way. We are mediators. We say there is a silver lining. We are mediators. We say there is a creative solution to the problem. We are mediators. We say don’t focus on the past but look to the future. We are mediators. We say tomorrow is better than today and can be better than yesterday. We are mediators.

It’s about time that we start listen to ourselves and talking to other people. Our profession, according to some, was dead if the proposed rule 169 passed as originally envisioned. A lot of people performed CPR and resurrected the body. We’ve been given a second chance.

But we can’t sit back and rest on this victory. The people who believe that we are not efficient, effective, or less expensive are still out there and still hold positions of power. Our word is that this was not a one-time shot by the Supreme Court. We must continue to be vigilant and to think in bigger ways about our mediations, our business practices, and our profession. We have to think about how to help these folks realize that mediation is a valuable public service and an excellent return on investment.

But I don’t practice civil mediations, or court appointed mediations, you say, so why should I care? These rules aren’t affecting me.

Because once the civil mediations, the court appointed mediations go away, it sets a precedent. The slippery slope has been greased and you are the next one to try to stop the avalanche. Talk to those folks in California who will see the entire court-annexed mediation system erased as of June 30 of this year. Talk to the folks in New York who are seeing community based mediation centers cut. California, New York, and now Texas—the three largest states in our country—have discussed eliminating aspects of mediation. That ought to scare the beejeebers out of everyone in this room as well as all of the people and businesses that depend upon mediation for the peaceful resolution of their disputes.

Dietrich Bonhoeffer said that “Not to speak is to speak. Not to act is to act.” We must speak, we must act, and we must view mediation, our roles, and our profession as something bigger than what we have for the last 25 years.

23 years ago, Steve Brutsche, a man who helped bring mediation to Dallas and to Texas, stood before an audience and gave a speech entitled “Rediscovering Professional Purpose and Service.” He said “when I look at the group of people that are attending this seminar today, it is with humility and pride mixed, an odd mix, but when I look at you I see the cream of our profession.” That most of us went into our profession “with a desire to have our lives be a contribution, with the desire to do something positive with our education and the opportunities given us….If you’ve gone through mediation, just one time, it shifts your view of what is possible forever. And I promise it’s addictive. The more you experience the opportunity to be of service, the more you want to be of service.”

A quarter of a century later, Adam and I stand before you, looking out to the cream of our profession. Seeing the experience of those who have mediated for a long time and those who are starting out on this professional journey and everyone in between. We stand before you with that odd mix of humility and pride. It is with humility that we ask those experienced mediators in the room to find the younger mediators and tutor them. It is with humility that we ask those new mediators to find the experienced mediators and latch on to them. It is with humility that we ask you to learn from each other, to help each other, and starting today, that we all recommit ourselves to our professional purpose and service. It is with humility, as Brutsche said, that we take this opportunity that’s been given to us—a second chance at life—to transform our profession and to give something back to it and to the public, by how we practice. It is with humility that we ask you to be Something Bigger.

Tomorrow I’ll be joining my longtime friends Frank Vecella and Robert Manley to present “Effective Litigation Management: Doing a Good Job at ‘Herding Cats’” at the TexasBarCLE’s 11th Annual Advanced In-House Counsel Course.  This project has been fun, productive, and educational so far, and we’re looking forward to Friday.

Hyperlinks to the PowerPoint and the Paper

The slides we plan to present, and the paper that accompanies the presentation, are available in the following formats using the following hyperlinks:

• The Paper, in .pdf format, can be accessed using this link.
• The Presentation, in PowerPoint format, can be accessed using this link.

Take a look at the presentation — you’ll be glad you did.

As you may know from my last post, I’ve been working on a few settlement counsel projects this summer.  Along the way I’ve learned that it’s not always easy to determine who actually serves as settlement counsel.  This is my effort to fix that problem.

Subject to the caveats at the bottom of this post, this list includes all the active settlement counsel I have found, updated as new information arrives.  If you’re aware of additional settlement counsel out there, or if you believe the hyperlink to one of the folks listed below needs to be updated, please let me know.

List of Special Settlement Counsel

1. Stephen D. “Steve” Altman – Washington, D.C.
2. Trey Bergman – Houston, Texas
3. Robert W. “Bob” Berliner, Jr. – Chicago, Illinois
4. Julian W. Bodnar – Saskatoon, Saskatchewan (Canada)
5. Monte Bond – Dallas, Texas
6. Mark J. Bunim – New York, New York
7. Mark A. Calhoun – Dallas, Texas
8. Francis “Frank” Carling – New York, New York
9. Francis L. Carter - Miami, Florida
10. Jonathan M. Cohen – Washington, D.C.
11. Robert F. “Bob” Copple – Scottsdale, Arizona
12. Ralph Cuervo-Lorens – Toronto, Ontario (Canada)
13. Ben Cunningham – Austin, Texas
14. John DeGroote – Dallas, Texas
15. Richard J. DeWitt – Coral Gables, Florida
16. Daniel Preston Dozier – Bethesda, Maryland
17. Eric O. English – Portland, Oregon
18. Kenneth R. Feinberg – New York and Washington
19. Warren Fitzgerald – Boston, Massachusetts
20. Laura A. Frase – Dallas, Texas
21. Eric Galton – Austin, Texas
22. Scott D. Gilbert - Washington, D.C.
23. Jim Golden – Chattanooga, Tennessee
24. Lew Goldfarb – Morristown, New Jersey
25. Michael P. Graff – New York, New York
26. William K. “Bill” Hoskins – Boston, Massachusetts
27. Lance Jones – Austin, Texas
28. Jeff Jury – Austin, Texas
29. Peter M. Kramer – Miami, Florida
30. Rachel S. Kronowitz – Washington, D.C.
31. Leigh Lasky – Chicago and New York
32. Roger A. Lennenberg – Portland, Oregon
33. James E. “Jim” McGuire – Boston, Massachusetts
34. Joseph P. “Joe” McMahon Jr. – Denver, Colorado
35. John V. McShane – Dallas, Texas
36. Gregory T. “Greg” Meyer – Plano, Texas
37. Charles E. Miller – New York, New York
38. M.A. “Mickey” Mills – Houston, Texas
39. Peter W. Morgan – Washington, D.C.
40. Michael W. “Mike” Nelson – Farmington Hills, Michigan
41. Patrick R. Nichols – Topeka, Kansas
42. Christopher Nolland – Dallas, Texas
43. Steven “Steve” O’Donnell – Lancaster, Pennsylvania
44. J. Patrick “Pat” O’Malley – Portland, Oregon
45. Miguel A. “Mike” Olivella, Jr. – Tallahassee, Florida
46. Bette M. Orr – Washington, D.C.
47. Michael A. Patterson – Baton Rouge, Louisiana
48. Don Philbin – San Antonio, Texas
49. Kami E. Quinn – Washington, D.C.
50. William T. “Bill” Reid, IV – New York and Austin
51. Douglas C. “Doug” Reynolds – Cambridge, Massachusetts
52. Michael K. Rozen – New York and Washington
53. Larry R. Rute – Topeka, Kansas
54. Michael D. “Mike” Schafler – Toronto, Ontario (Canada)
55. Michael “Mike” Schechter – Minneapolis, Minnesota
56. Edward D. “Ed” Shapiro – Chicago, Illinois
57. Richard Shore – Washington, D.C.
58. David Stern – London (United Kingdom)
59. Gordon L. “Gord” Tarnowsky – Calgary, Alberta (Canada)
60. Roy Toulan – Boston, Massachusetts
61. Scott Van Soye – Los Angeles, California
62. Jerome F. “Jerry” Weiss – Cleveland, Ohio
63. Mel Wolovits – Dallas, Texas
64. Thomas R. “Tom” Woodrow – Chicago, Illinois
65. Michael Zeytoonian – Boston, Massachusetts

Four Caveats

No list is perfect, and this one is no exception.  Caveats include:

1. Who appears on this list. I tried to limit this list to the individuals — rather than the firms — who list “settlement counsel” on their websites, on their LinkedIn profiles, or on other promotional materials.  If you are aware of someone not on this list who practices as settlement counsel and holds himself or herself out as such in a verifiable way, please let me know.
2. Where the hyperlinks go. I generally hyperlinked to the individual’s bio or other material that references the term “settlement counsel”.  This didn’t always make sense — hence the inconsistency in where the hyperlinks lead.
3. General errors. Name misspellings, place misspellings, and nickname omissions happen.  Please speak up when you see them, and my apologies in advance.
4. A matter of discretion. The inclusion or exclusion of names on this list ultimately requires discretion.  I have exercised that discretion here, and I plan to do so as this list is updated.

With all that said, take a look at who serves as settlement counsel.  You’ll be glad you did.

A special thanks to Spencer Guy for his assistance with this list and several other settlement counsel projects as he finished his final year of law school.

“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 know you won’t sting me?” The scorpion says, “Because if I do, I will die too.”

The frog is satisfied, and they set out, but in midstream, the scorpion stings the frog. The frog feels the onset of paralysis and starts to sink, knowing they both will drown, but has just enough time to gasp “Why?”

Replies the scorpion: “Its my nature…”

As we try to settle our cases, The Scorpion and the Frog explains a lot.  What’s in your litigator’s nature?

Is Settlement Counsel the Answer?

Yes, 90-odd percent of cases settle, and yes, most of them settle without settlement counsel, but could we get to those settlements faster?  Are there better settlements out there?  Could more of them preserve our relationships with our vendors, our employees, and our clients?

The ADR Times, the Negotiation Law Blog and The National Law Review have explored the concept of dedicated settlement counsel here and here and here, and the idea that you may need someone dedicated to, trained in, and rewarded for settlement shouldn’t come as a surprise:

The types of questions that are asked when focusing on settlement are different from the types of questions that a litigator needs to ask to prepare a complaint and commence a suit.

See James E. McGuire, Why Litigators Should Use Settlement Counsel.  The Ohio State Journal on Dispute Resolution’s “The Case for Settlement Counsel” has added support for the concept, and the Harvard Negotiation Law Review gives more reasons to consider using settlement counsel with Gary Mendelsohn’s “Lawyers as Negotiators”.  These sources and others make it clear that the idea of settlement counsel just makes sense.

More Questions about Settlement Counsel

As I work through the settlement counsel concept, more questions come to mind:

• What cases are appropriate for settlement counsel?
• When should a client engage settlement counsel?
• What does a client get with settlement counsel that she wouldn’t otherwise get?
• How can a client make settlement counsel more effective?
• How do settlement counsel get paid?

This summer I’ll explore these topics, and more.  Join the conversation — you’ll be glad you did.

“The Scorpion and the Frog” Image by Nicole L. Garber; © 2012 John DeGroote

Whether you’re traveling from Santa Monica or Sanibel Island, getting to Pepperdine for a few days of training isn’t easy, and I don’t endorse any class lightly.  That said, I’m happy to recommend a course I took last summer that’ll be taught again this June by Don Philbin and Doug Noll — because it’s just that good.

Philbin and Noll’s course, Preventing Bad Settlement Decisions and Impasse Using Brain Science, Game Theory, Animated Communication, and Micro-Interventions, is one of 15 courses offered in Malibu this June at the 25th Annual Summer Professional Skills Program put on by Pepperdine’s Straus Institute for Dispute Resolution, and it has earned its place among Pepperdine’s top-tier offerings.

Two Fantastic Instructors

Whether you’re a mediator or an advocate, know that the Philbin/Noll duo combines two different backgrounds, two different perspectives, and two different accents to achieve a real, immediate change in those who take their course.  Doug Noll is an established keynote speaker, an author of several helpful and relevant books (like Peacemaking: Practicing at the Intersection of Law and Human Conflict), and a top-tier mediator, and his teaching partner Don Philbin is equally distinguished — you may know Don through his cutting edge Picture It Settled app, his often-cited Harvard Negotiation Law Review article, his on-point Twitter feed (@DonPhilbin), or his successful mediation practice.  But don’t just take it from me; one of Don’s recent conference attendees said:

In my role as the Executive Vice President, General Counsel of [x] I see and participate in many programs all over the world.  Don Philbin is clearly head and shoulders above the rest and presents one of the most entertaining and most informative programs on risk analysis I have ever seen.  Drop whatever you are doing and try to see him in action.

Preventing Bad Settlement Decisions and More

Philbin and Noll have agreed to cover several critical topics in the three-day course, most of which are neglected or underserved in mediation training.  I learned last June that they can deliver on their aggressive course description:

Most mediators operate on instinct, intuition, and experience. This session will elevate your practice — you’ll learn enough of the theoretical underpinnings of neuropsychology to gain clarity, understanding, and a driving purpose to kick your game up a notch. And you’ll get to immediately practice effective tools that will help you implement that theory in the working laboratory that is this advanced course.

Count on Philbin and Noll to cover some of the less intuitive topics that drive results in the negotiation context, like:

and, as you can imagine, a whole lot more.  Make it to Malibu this summer — you’ll be glad you did.

Later I learned the rest of the story, and the case of the unrelenting marimba ringtone is now an easy way to make an important point to mediators, lawyers, and the the clients they serve.

Patron X’s Perspective

“Every truth has two sides; it is as well to look at both, before we commit ourselves to either”.  Aesop’s quote made sense over 2000 years ago, and the rest of this story reminds us it’s good advice today.  Unlike me, The New York Times asked “Why?” and “How?”, and their follow-up tells us a few things about the man who apparently couldn’t turn his phone off.  Patron X (as he is known today):

• Is a 20-year subscriber to the orchestra (hence his seats down front);
• Changed from a BlackBerry to an iPhone just one day before the concert;
• Made sure to turn his new iPhone to silent mode before the concert began;
• Had no idea his iPhone’s alarm was set — or that phones even had alarms; and
• Had no idea an iPhone’s alarm would sound even in silent mode.

Yes, Patron X’s alarm rang and, as alarms do, it rang and rang and rang — all within the oblivious reach of its owner.  None of these facts will bring back the final measures of Mahler’s Symphony No. 9, but we now know “why,” and “how”, and this is no longer an open and shut case.

Have You Asked “Why?” and “How?”

Lately I have noticed mediators, counsel and the other side arguing against the mediation joint session, citing the emotions or personalities of the parties. Apparently there’s a bit of a debate on this, and posts from Diane Levin, Victoria Pynchon, and Joseph C. Markowitz explore this dispute further. Without wading into the joint session debate here, I do believe the parties need to understand the other side’s perspective, and they need to understand it early in any dispute.

Michael Hyatt’s post Both Sides of the Story reminds us that jumping to conclusions is a problem we all face:

The problem is that most of us (me included) forget [that there are at least two sides to every story] in actual practice. Someone comes into our office and shares their tale of woe. We listen carefully, nodding our head in sympathy. We are surprised by how our colleague was treated. We may even become angry. Their response to the situation appears perfectly reasonable. Then, without further reflection, we take some action that we later regret.

So what do we do?  A million miles or so ago I wrote One Secret the Two Million Miler Club Has Taught Me, where I told the story of the $24 breakfast that catalyzed the end of an eight-figure, multi-year dispute.  The short of the story is that — despite temptations to the contrary — I set up a meeting, got on a plane, and sat down to listen to the other side.  By the end of breakfast I understood how the dispute had started and why the other side thought they were right, and we were well on our way to settling our differences.

The next time you’re ready with your side of the story, ask what the other side’s is.  You’ll be glad you did.

I don’t stray off topic often, but occasionally I do — with a warning like this one. This post is about BELawsuit.com rather than negotiation or settlement strategy; feel free to scroll to the next post if that’s why you’re here.

On a long plane ride home from New York in 2009 I wrote about BearingPoint, Inc.’s bankruptcy filing and the next steps in the process, which ultimately led to the sale of BearingPoint’s operations memorialized in press releases here, here, here and here.  This post is about the next chapter in the story.

Since late 2009 our team has been hard at work pursuing assets on behalf of the BearingPoint, Inc. Liquidating Trust, and the most significant of those assets is litigation against BearingPoint, Inc.’s former CEO and many of its directors.  To seamlessly and efficiently address requests for information about the case from BearingPoint, Inc.’s former creditors and employees, as well as the press and others, we have just launched BELawsuit.com, which provides a Case Summary, a copy of the Complaint, Court Filings, Case Updates, News Updates and More. Those interested in the progress of the case can subscribe to its RSS Feed or to its Twitter feed @BELawsuit.

Those having questions or comments about the site should contact John DeGroote at John DeGroote Services, LLC, who is responsible for maintaining the site.

Fifteen years as a client have taught me that people don’t pay lawyers because they want to; they pay them because they have to.  If you’re a lawyer in a law firm, this isn’t abstract advice for somebody else — like it or not, your clients are looking for ways to pay less for what you do.  And I just found another way they will succeed.

Until recently I thought that clients’ drive for efficiency was a function of the economy, and that we’re just a recovery away from business as usual.  Alternative fees are a great idea that most are afraid to implement, discounted hourly rates are as creative as most ever get, and outsourcing legal tasks to anyone other than a traditional law firm was, for all practical purposes, unavailable to most clients.  On one of these thoughts, I was wrong.

A Patch for The Yetis

This story doesn’t start with a legal problem at all.  Instead it begins with 16 boys in my son’s YMCA Adventure Guides tribe, The Yetis.  They needed patches to show what tribe they’re in, and the patches needed a logo.  With no good Yeti images handy, I took a page from Tim Ferris’s The Four Hour Workweek and outsourced the logo design through a posting on iFreelance.com.  The Yetis ended up with a great patch, and I learned two things lawyers should know.

Outsourcing Even Discrete Tasks Isn’t Hard Any More

Sure, the big clients have been sending work offshore for years, but until recently the average client hasn’t had convenient access to offshore service providers or domestic legal talent in remote markets.  Before now, transaction costs and a lack of a roadmap have caused too much friction to make outsourcing available to most clients.  But my Yeti logo project showed me this is no longer true.

I found iFreelance.com, registered as a user, and posted my Yeti Logo project in under 20 minutes.  In that post I left the bidding open for 48 hours, gave a few particulars, and listed a $250 price cap.  In less than two days I had settled on Keehan & Partners to do the work, and ended up with a better logo than I had ever imagined.  The statistics tell the story:

• 20 minutes on iFreelance.com
• Resulted in 16 bids
• From 4 countries
• With prices from $40 to $250
• With 1 freelancer, Keehan & Partners, selected within 36 hours
• Who completed the project within 4 business days for well under $250
• With $0 paid by me to any intermediary.

I ended up with a great product and a promising long-term relationship with a California firm I would never have met otherwise.  Had I known how easy — and cheap — it was to outsource even a single task, I would have done it earlier.  It can’t be that long before this realization hits the legal space.

Outsourcing’s Advantages Can Apply to Legal Tasks, Too

Once my Yeti project was done I began to poke around to see if there are others who are outsourcing discrete legal tasks now that the process has gotten easier and cheaper.  I quickly found Disaggregation:  An Emerging Issue by John Steele as well as Milton C. Regan and Palmer T. Heenan’s Supply Chains and Porous Boundaries:  The Disaggregation of Legal Services, and realized that our seamless access to lawyers and other legal vendors everywhere means that legal services disaggregation is here to stay.  Increased competition on discrete tasks can’t be good news for the traditional law firm economic model.

On my plate now are a dozen things that can be done by freelance lawyers, including corporate policy revisions, discrete legal research projects, and revisions to a contract template.  No, freelancing won’t work for a major transaction or “bet the company” litigation, but individual tasks in any transaction or dispute, like researching the other side’s experts, document review, and a few others, can be segregated and outsourced.

It’s been a while since I learned about the concept of comparative advantage back at Mississippi State, but there are a few reasons why freelance legal talent might be a cheaper alternative for certain tasks:

• an established lawyer nearby might be excited to work on this specific project and willing to cut her rates;
• a lawyer in your industry but across the country might have a template for just the project you propose;
• a lawyer in “flyover country” might be a new entrant into the market and be willing to cut his rates to gain experience as a freelancer; and
• a vendor in Montana, or Mauritius, might have a lower cost structure than your go-to law firm.

A Quick Word to the Naysayers

Yes, I know what the critics will say:  you have no quality control if you hire a service provider in India or Indianapolis or wherever.  Maybe this deserves its own post, but a few responses come to mind fairly quickly:  Must the first draft of that template I need be perfect?  Don’t I need to look carefully at every new service provider’s work, and let their work speak for itself?  And finally, with the cost savings they’ll realize through legal service disaggregation and outsourcing, clients can afford to pay someone to review the work from these new channels.  Will that be outsourced someday, too?

At the end of the day, do clients need the same stable of firms to do all the tasks they need to do?  Not at all.  Naturally, clients will have to assess their needs and what the ever-emerging market has to offer, but — like The Yetis — they may end up with just the product they need, at a fraction of the price.

What’s your dispute worth – to you and to the other side? It’s hard to imagine settling without knowing the answer, and a decision tree can be a critical tool to help you get there. As I have said before, there are plenty of reasons why we should use decision trees, but – until now – there hasn’t been a step by step guide detailing how to use them. It’s time to change that.

Smith v. BiggCo, Inc. – Case Background

To demonstrate how to create a decision tree I have used a few screenshots from Resolution Tree, a decision tree product from my friends at Unit Interactive and me.  In this decision tree, you represent Smith, who plans to sue BiggCo, Inc. for wrongful termination. You know that BiggCo will fight the case hard, but you’re well into your Early Case Assessment and know that – if you can make it to trial – you have a real shot at $1,000,000.

You anticipate BiggCo. will file a Motion to Dismiss and a Motion for Summary Judgment, and you’ll need to determine your costs to overcome each, as well as the chances you won’t. If you make it to trial, you’ll more than likely win, and you have determined (through your Early Case Assessment) that your damages will be clustered at low, medium and high ranges of $25,000, $150,000, and $1,000,000.

Your First Event — Settle or Litigate?

The first real step in any decision tree is to articulate the decision. This initial choice can be anything over which you have control – “File suit in California or Ohio?” or “Arbitrate or Litigate?” or “Settle or Litigate?”. For disputes, I often insert “Settle or Litigate?” as shown below:

Note that you’ll be asked to insert a “Cost” and a “Payoff/Payout.” In this case I have assumed it’ll cost $1,500 at my hourly rate to negotiate a settlement agreement. The “Payoff/Payout” amount is what you’ll expect to receive or to pay if this event occurs; I have inserted $27,500, which is BiggCo’s settlement offer in my case.  If you don’t have a settlement offer, you can insert the offer you anticipate will come, or you can leave it at $0 for now.

Your Second Event – The Motion to Dismiss

For your second event, you need to use your experience and what you know about the case to answer a few questions:

• What are the possible outcomes?
• What is the probability – the chance or the likelihood – that each outcome will occur?
• What will it cost to respond to the Motion to Dismiss – no matter what the outcome is?
• What is the Payoff/Payout to or by your side, if any?  What payments will you make or receive? (Note that, if you are the plaintiff, you will enter a positive number, since you will be receiving a payment; if you are a defendant, you will enter a negative number, since you will be making the payment.)

As you can see below, on behalf of Smith you have decided it will cost $10,000 to respond to the motion, and you only have a 20% chance of losing it. There is no payout to you whether you win or lose, since a loss on the motion is a loss of the case and the reward to a plaintiff for winning a motion to dismiss is simply the next stage in the lawsuit.

Naturally, you want the motion to be denied so you can take the next step toward trial. That next step in this case is the Motion for Summary Judgment, which is represented as an “event” that follows the denial of the Motion to Dismiss.

Your Third Event – The Motion for Summary Judgment

You know the Motion for Summary Judgment in your case will be tough. As shown below, you have determined:

• it will cost $25,000 to prepare a response;
• you have only a 33% likelihood of prevailing;
• the next step is trial – if the motion is denied; and
• there is no “Payoff/Payout” at this stage:

Your Final Event – Trial

At trial you could win or lose, but if you win you have clustered your likely damages into “low,” “medium” and “high” damages of $25,000, $150,000 and $1,000,000. You list these outcomes on the tree as follows:

The Tree

At the end of the day your decision tree will look something like this:

Just as you suspected, there are lots of potential outcomes, including your million-dollar verdict. But what’s your case actually worth before it starts?

The Report

The Summary Report on Smith’s case is telling.  The following graphic shows that:

1. The plaintiff in this case has an 80% chance of losing her case before it even begins;
2. If costs are reflected in the equation, the plaintiff ends up owing money in 86% of the outcomes in this case; and
3. Even with a 30% chance of a $1,000,000 verdict at trial, the costs to get there – and the chances she won’t – render the Expected Value of the tree a mere $48,870.

Indecision over what to add into your decision tree is often the most difficult part of any tree, and there are no perfect answers, particularly at the outset of the case. So keep your tree simple as your case begins, and revisit and revise the tree as your case progresses. Smith v. BiggCo, Inc. is a perfect tree for an Early Case Assessment, but after winning a Motion to Dismiss, I would likely revise the tree to incorporate more details and issues in the case.

Try a decision tree in your next case.  You’ll be glad you did.

For more on Decision Tree Analysis, read the Settlement Perspectives series on decision trees, which includes:

1. Decision Tree Analysis in Litigation: The Basics;

2. Why Should You Try a Decision Tree in Your Next Dispute?;

3. Advanced Decision Tree Analysis in Litigation: An Interview with Marc Victor, Part I;

4. Advanced Decision Tree Analysis in Litigation: An Interview With Marc Victor, Part II;

5. Decision Trees in Mediation: A Few Examples;

6. Avoiding the Limitations of Decision Trees: A Few Tips from Mediators Who Use Them; and

7. The Decision Tree – Step by Step (this post).

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
• Elayne E. Greenberg, Esq.
• Stephen A. Hochman, Esq.
• Professor Jonathan M. Hyman
• Laura A. Kaster, Esq.
• Molly Klapper, J.D., Ph.D.
• J. Anderson Little, Esq.
• Julia Morelli
• Daniel Rainey
• Ruth D. Raisfeld, Esq.
• Terri Roth Reicher, Esq.
• James F. Ring, Esq.
• Irene C. Warshauer, Esq.
• Hon. Barbara Byrd Wecker

Before your next impasse, take a look at Definitive Creative Impasse-Breaking Techniques in Mediation.  You’ll be glad you did.

Longtime readers know I’m a big fan of training programs at Pepperdine’s Straus Institute for Dispute Resolution, but our friends in Malibu have just given us two more reasons to come back for the 24th Annual Summer Professional Skills Program in Dispute Resolution – Don Philbin and Douglas Noll.

You probably know Don as a mediator or through his work on adrtoolbox.com or his often-cited Harvard Negotiation Law Review article, and you likely know Doug from his numerous books, his mediation practice focusing on “difficult, complex, and intractable conflicts,” and his various works at lawyertopeacemaker.com – but what you may not know is that they have teamed up to teach a cutting-edge class at Pepperdine this summer to help mediators, lawyers and their clients achieve better settlements from the Monday after the training ends.

Preventing Bad Settlement Decisions and More

Philbin and Noll have agreed to cover several critical topics in the three-day course, most of which are neglected or underserved in mediation training – the title to their course is “Preventing Bad Settlement Decisions and Impasse Using Brain Science, Game Theory, Animated Communication, and Micro-Interventions”, and their course description makes clear that this won’t be the ho-hum training you’re used to:

Most mediators operate on instinct, intuition, and experience. This session will elevate your practice–you’ll learn enough of the theoretical underpinnings of neuropsychology to gain clarity, understanding, and a driving purpose to kick your game up a notch. And you’ll get to immediately practice effective tools that will help you implement that theory in the working laboratory that is this advanced course.

Two Teachers Who Can Actually Teach

Theory is one thing, but the ability to make it stick it is another. This year Doug drew and entertained the largest attendance at the Texas State Bar Dispute Resolution annual course with exceptional reviews, and Don regularly earns similar praise. I have seen Don present, and I’m writing this post, but don’t just take it from me — one of his recent presentation attendees left the following comment:

In my role as the Executive Vice President, General Counsel of [x] I see and participate in many programs all over the world. Don Philbin is clearly head and shoulders above the rest and presents one of the most entertaining and most informative programs on risk analysis I have ever seen. Drop whatever you are doing and try to see him in action.

I’m not sure I could have said it better myself. I hope you can make it to Malibu this summer.

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.