3 PerspectivesJanuary 2, 2009

How Close Are We? Another Way a Mediator Can Help

Have you ever wanted to know what the other side really wants in a case?  They’re sure to posture and ask for one thing, but have you ever wondered what they’re really looking for before everyone gets further entrenched?  There is a way to find out.

I learned how you can tell if you and the other side are really that far apart in a dispute with one of the world’s more experienced defendants. We had met before and a lot of money was at stake, and sending a settlement demand to these folks would have been pointless — no matter what I demanded it would be too much. I suspected we privately valued the case the same way, but nobody opens a case with his bottom line position. We’d have to litigate for years to More…

Categories: ADR,Arbitration,Miscellaneous,Settlement,Tactics

1 PerspectiveDecember 28, 2008

Early Case Assessments: An Updated Index to Settlement Perspectives’ ECA Posts

“If you and the other side value the case differently, at least one of you is wrong.”  Settlement Perspectives’ Early Case Assessment series started with this premise, and there’s more on this topic to come.

This is a quick index to Early Case Assessment posts on Settlement Perspectives so you can find them all in one place — and we’ll be sure to keep this list updated as new ECA content arrives.

Early Case Assessment Posts:  An Index

ECA posts on Settlement Perspectives include the following:

• Easier Said Than Done: Early Case Assessments Part I: The Definition of Early Case Assessment — and a brief discussion of what it’s not.
• The Early Case Assessment Checklist: Early Case Assessments Part II: The 15 items on the Early Case Assessment Checklist, grouped by category to keep them organized.
• Putting the Checklist into Action: Early Case Assessments Part III: Four important ideas, admittedly based on mistakes I have made, that will make your ECA efforts more effective.
• Better Settlements from Better Information: Early Case Assessments IV: Why, if you plan to settle your case, a thorough ECA will be worth the investment it will require.
• Better Docket Management Through Early Case Assessments: ECAs Part V:  More than a few reasons why ECA is a good idea even if you don’t plan to settle.
• The Partner Focus Group:  An Easy Way to Get the Extra Perspective You Need:  Because sometimes you need another perspective.
• CPR Publishes New Early Case Assessment Guidelines:  Additional resources to assist you with your ECA.
• Early Case Assessments:  More on the ECA Toolkit from PD Villareal:  Excerpts from an interview with one of the pioneers in Early Case Assessment.

Happy Holidays to you and yours.

Categories: ECA,Fundamentals,Selected Posts,Settlement

3 PerspectivesDecember 19, 2008

What High-Low Agreements Can Do for You: Settlement Structures Part III

The fiscal year ends in just two weeks, and for some reason your client’s auditors keep focusing on that Acme Tool case. It’s been around all year, but somehow they won’t let go of Acme’s claim for punitive damages. You know punitives are out of the question and your opponent probably knows it, too, but accountants aren’t much for hunches. Since the case isn’t ready for settlement, Acme Tool’s claim makes its way to your auditor’s punch list for later discussion. Do you have a choice here?

You don’t have to settle the case to satisfy your accountants, your insurers and everyone else who might be alarmed by how much the other side has claimed. A high-low agreement can help you remove the potential for a runaway if you’re the defendant — and, if you are the plaintiff, you can use a high-low agreement to protect your downside and cover your costs while you focus on the heart of your case.

The High-Low Agreement Defined

In You Can Win by Settling Halfway: Settlement Structures Part I we discussed when it might pay to settle halfway — when you might resolve parts of a More…

Categories: Arbitration,Negotiation,Settlement,Structures

1 PerspectiveDecember 17, 2008

Rule 68 Offers: A Few Sample Forms to Get You Started

A few months ago we first discussed how valuable Rule 68 can be in Rule 68 and Offers of Judgment, Part I:  How they Work and Why You Should Care, and that initial post has evolved into this series on Rule 68. I have recently heard from a few readers who are new to offers of judgment, with several looking for sample Rule 68 Offers to help get them started. This is a quick post to do just that.

A Few Sample Rule 68 Offers of Judgment

Attached are four Rule 68 Offers actually submitted in California, Michigan, More…

Categories: Miscellaneous,Rule 68,Settlement,Tactics