9 PerspectivesDecember 12, 2008

The Mediator’s Proposal: A Great Tool For Yesterday’s Disputes

It was a hot Friday afternoon in Miami, and everyone but the mediator had a flight to catch. The lawyers on the other side knew what they were doing, but we weren’t closing the gap. Sometimes impasse is a good thing, but not here — four conference rooms and a reception area full of lawyers needed to settle, but our steady path to resolution had stopped abruptly. What was the other side up to?

As our mediation closed, the mediator made a proposal — a “mediator’s proposal.” I knew immediately why we had reached an impasse. As I look back on that settlement it’s clear that, as effective as mediator’s proposals might have been back in the day, they aren’t the tool More…

Categories: ADR,Mediation,Settlement

1 PerspectiveDecember 5, 2008

Get to the Point, and Get It Across, with a Mediation Mind Map

A sample Mediation Mind Map, available in .pdf format here.

You’ve been there before. You’ve done your homework to prepare for the mediation, ready to engage over the issues in the case. A trial bag filled with critical notes, important documents, and detailed spreadsheets sits within arm’s reach. But the other side speaks first, and offers something insightful like: “My client’s Widgetmaster doesn’t work; since you made it, you owe us money.” Now it’s your turn.

Sometimes it takes a little more effort to untell a story than to tell it. In most disputes negotiation success depends on a command of the details, and in your next mediation the outcome may hinge on your mediator’s ability to remember those details on the fly. Do you have a way to get them across to your mediator before she meets alone with the other side? More…

Categories: Communication,Mediation,Miscellaneous

Add Your PerspectiveNovember 28, 2008

More Negotiation Tactics: Stop the Nibbler Before He Starts

I recently wrote One Use for an Unnecessary Confidentiality Clause, where I outlined a tactic that helped me buy a house I really wanted. In that same deal I learned how to stop what Chester Karrass describes as “the nibbler” with a technique that can translate well beyond your next home purchase — whether you are settling a lawsuit or just working to close your next business transaction.

While you might not know him by name, you know the Nibbler already. On the cusp of getting your deal done, your opponent asks for just a bit more — we’ve all heard something like “if you’ll pay today’s mediator, too, we will accept your settlement offer.” If you’re in a one-time deal with the other side, you don’t More…

Categories: Negotiation,Tactics

Add Your PerspectiveNovember 21, 2008

Why Mediate at All? Can’t We Just Work It Out?

If you haven’t heard the old-school pitch, you will someday soon:  “I remember when lawyers actually talked to each other.  We don’t need to mediate this case; if it can be settled, you and I can work it out the way good lawyers used to.“

Although direct settlement talks can be cheap, quick and fun, there are reasons why mediation is as popular as it is.

In their inaugural post, Practical Dispute Resolution asked: “If the parties can’t agree, how can a mediator help?” I’ve settled cases in about 20 states, both as a client and as counsel, with mediators and without them. So I have my perspective on why mediation often works when direct negotiations don’t.  The top 7 include: More…

Categories: Mediation,Settlement