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<xTITLE>Mediate . . . or Roll the Dice?</xTITLE>

Mediate . . . or Roll the Dice?

by Nancy Hudgins
January 2012

Civil Negotiation and Mediation by Nancy Hudgins

Nancy  Hudgins

As a practicing lawyer, when I tried to explain the vagaries of jury trials to clients, I told them a story about the negotiation class I took at U.Va. law school in the 1970’s. This was a “how-to” class in negotiation taught by Charles B. Craver, who is now at The George Washington University School of Law.

Professor Craver set up a series of negotiations: contract, personal injury, labor, etc., for us to compete in. Regardless of the “side” we represented, points were given based on the result of your negotiated settlement as compared to the settlements your classmates achieved. Our grades were based partially on the number of points we accumulated. Needless to say, we were a bunch of highly competitive law students, and each one of us tried to out-negotiate our peers.

But there was a catch. If we bargained too hard and failed to reach an agreement, we took out a die (singular of dice) and rolled it. Each number on the die had a pre-assigned settlement value, so there were six predetermined outcomes. Some were a little better than the last offer left on the table. Most were worse.

That mental picture has stuck with me for more than thirty years. If you are unable to reach an agreement with the other side that meets at least some of your client’s needs and interests, you go to trial and roll the dice.

Professor Craver’s books on negotiation are well worth the read: his most recent treatise, Effective Legal Negotiation and Settlement, and, The Intelligent Negotiator, a more accessible, non-treatise book. His was one of my most enjoyable classes in law school. Thanks, Charlie!


Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class actions. She has settled and mediated thousands of cases. In addition to civil litigation mediation, she also co-mediates divorces with John Duda, a marriage and family therapist.

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