Category Archives: Mediation

Football fairness: Lessons for ADR?

“It’s not fair!” How many times have mediators and negotiators heard that refrain? Whether from the mouth of the negotiator across the table or the politician seeking higher taxes, everyone wants their “fair share.” But what is ‘”fairness” anyway? Is there a more subjective, elusive, or slippery word anywhere in the dictionary? Like other perceptions that affect negotiation, fairness is in the mind of the beholder. Yet the concept is...

Talk Less, Listen More, Negotiate Better
A recent Wall Street Journal article brought home to me again the importance of listening for successful negotiating. Journalist Masada Siegel reported interviewing Glen Cohen, a retired hostage negotiator for the Israel Defense Forces. For a hostage negotiator, listening can mean life or death. Cohen says the biggest mistake to make is to jump to the last step in the negotiation: behavioral change. To achieve behavioral change, the negotiator must...
Who’s Sorry Now?
The season is upon us. Alas, not summer but the season of apologies. Like pollen in the air, apologies proliferate. Brought to the forefront by the #MeToo movement, apologies are everywhere and not just limited to controversies over sex harassment. The problem is too many of the apologies we see are half-baked and insincere. Apology is now getting a bad name. Perhaps it’s time to set the record straight and...
The Self-Fulfilling Prophecy: How We Create Our Own Conflicts

...And How We Might Stop Doing So

Why does an athlete who languishes on one team flourish when traded to another? Why does a move from one school to another result in a student’s change from mediocrity to discovery of new inner resources? Why do the police and the communities they serve often remain at odds? Why are my negotiations with “difficult” adversaries usually unproductive? The answers may lie in a...
Food for Thought…And for Negotiation
ADR professionals and experienced negotiators know that food can play an important role in building rapport, establishing connection, and fostering trust between adversaries.   Food is ubiquitous at family gatherings, in religious ceremonies, and at diplomatic meetings for good reason.  But how can food figure in our negotiations, arbitrations, and mediations? As Barry Goldman observes in The Science of Settlement: “Food is good. . . . . [A}s a consequence, things associated...
Button It Down: Writing A Settlement Agreement When You’re Bushed
We’ve all been there: you have spent a long day negotiating or mediating a settlement to a contentious lawsuit or business conflict.  You have agreed upon the essentials of the deal.  You are tired, hungry, and perhaps a bit miffed at your adversary. But now you need to draft the details of a binding agreement to achieve peace and finality.  What must you do to get this done right and...
Rambo Revisited
Rambo may be outdated as a movie figure, but his tactics are not, at least for those who negotiate deals and participate in mediation sessions.  Extreme or adversarial forms of competitive bargaining still have currency among some litigators and their clients.  Recognizing extreme bargaining tactics and knowing some antidotes to them will increase your chances of success in negotiations and at the mediation table. I am not talking about everyday competitive...
The Five Keys to Choosing a Mediator for Your Case
You know that over 95% of cases settle short of trial, and litigation costs and delay are an issue with your client.   What’s more, your judge, or the court rules, are pushing you into mediation.   You believe a good mediator might buffer you from your client’s upset when you ask tough questions about the weaknesses of her case. 
So, how do you choose the right mediator for your case?...
Mediation Prep: Five Essential Considerations
A surprising number of attorneys and clients begin commercial mediation without having fully prepared beforehand.  Consider a few essential exercises before you draft your mediation summary and sit down at the mediation table:
  1. Thoroughly evaluate your needs, interests, and objectives.  What is your “best alternative to a mediated agreement” or BATMA? If you are already in litigation, this undoubtedly means calculating your likely result at trial.  What are the strengths and...
Volunteer vs. Private Mediator: Can’t We Just Get Along?
Convene a gathering of private, for-pay mediators to discuss the prognosis for their future and their conclusion is likely to be  “guarded.”  Informal mediator surveys and anecdotal evidence suggest that perhaps 20% of private mediators garner 80% of the business.  Some senior lawyers who took 40 hour civil mediation training over the past decade thinking ADR would be the next cottage industry providing a soft retirement landing have dropped out...