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...More
...And How We Might Stop Doing SoWhy 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...
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...More
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...More
Rambo may be outdated as a movie figure, but his tactics are not, at least for those who negotiate deals and participate in mediation sessions.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...More
Learning To See From Another’s Viewpoint The key to successful negotiation, whether mano a mano or with the help of a mediator, is understanding that the person with whom you are in conflict sees the situation differently than you do. Sounds simple enough. What could be easier you say? Unfortunately, your hard-wiring is working against you. We are built to see things our own way and to assume that...More
We’ve all been there: our negotiation or mediation has been dragging on for several hours now. It’s close to lunch time, or maybe dinner. But we’re so close to a deal. We trudge onward. It will only be another hour or so. Yet, one hour turns into two, maybe three, and, before we know it, we are tired, hungry, and cranky--hardly at our best to consummate a complex transaction. You...More
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?...
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:
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...