Because The Other Side Has A Perspective
“Every truth has two sides; it is as well to look at both, before we commit ourselves to either”. Aesop’s quote made sense over 2000 years ago, and the rest of this story reminds us it’s good advice today. This article examines the scandal at the New York Philharmonic when one patron's cell phone rang continuously--a good reminder to examine both sides' story without forming a conclusion.
How Much is your $1,000,000 Case Worth?
What’s your dispute worth – to you and to the other side? It’s hard to imagine settling without knowing the answer, and a decision tree can be a critical tool to help you get there.
Risk Based Analysis: How Do You Make Your Next Move?
It’s no secret I have been on a bit of a Decision Tree kick lately — I just spent two days in one of Marc Victor’s (fantastic) training sessions, and Settlement Perspectives’ series on this important topic continues to grow. Today we’ll explore how one experienced mediator uses a similar approach to prepare mediator’s proposals, and how you can use the same process as you make your next settlement offer.
Decision Trees In Mediation: A Few Examples
It’s no secret that I believe decision trees can make a difference as you try to settle your next lawsuit, and my series on decision trees will tell you why. But I’m not the only one. Your comments to my prior posts, our follow-on discussions since then, and a little research confirm that a confident minority of mediators and litigators use them, too. This post is the first of three over the next few weeks that will give you real-life examples of how decision trees are used to settle disputes.
The Multi-Step Dispute Resolution Clause: A Few Reasons Why Clients Like Them
Last week we defined multi-step dispute resolution clauses and explored why a dispute resolution framework, negotiated before the contract is signed, can help businesses avoid litigation in many cases. This post will give you a few more reasons why your client might want a multi-step dispute resolution clause next time — even if a dispute seems unlikely.
Multi-Step Dispute Resolution Clauses: 7 Reasons They Work
As we have discussed before, the best way to spend less on litigation is to have less litigation. Yes, sometimes it is better to litigate, and yes, settlement talks are hollow if you can’t walk away from the negotiation table, but most clients prefer to avoid litigation when they can. So how do you accomplish that? The multi-step dispute resolution clause is a good start.
Another Look At How The Brackets Work
It’s no secret that I went to Duke Law School and I’m happy to see the Blue Devils advancing through the NCAA Tournament brackets this year, but this isn’t a post about basketball. I wander off topic every now and then, but there are limits.
Toward Better Client Service: A Few Questions For Outside Counsel
March 11, 2010Toward Better Client Service: A Few Questions for Outside Counsel In a world of alternative fees, law firm convergence, the ACC Value Challenge and more, what does the client really want? Is it lower fees, predictable expenses, more “value” for the company’s legal dollar, or something else? What’s the best way for a law firm to respond? It turns out that clients are eager to share the answers to all these questions — all you have to do is ask.
A Settlement Lesson From “Switch”: Who Does Your Opponent Think He Is?
Longtime Settlement Perspectives readers know that I’m a big fan of Chip and Dan Heath. Their first book, Made to Stick, inspired posts back and forth with the authors on why you might not want to send a message in negotiation, and the rest of Made to Stick continues to color my view of message “stickiness” — a term the Heath brothers contributed to today’s communication lexicon.
What Will She Tell Her Husband?
When was the last time you were in mediation and the other side just didn’t “get it”? You have what you need to win the case — documents that demonstrate the fraud, confirm the negligence, or whatever — but the other side just won’t go away. You offer a few dollars so you’ll be done by lunch, but she still won’t give in. Why not?
In Mediation, Who Gets To Say “We’re Done”?
It’s been almost 20 years since my first mediation, and I still remember the rehearsed opening sessions from those days. Mediation after mediation began at 9:35 with a map of the day from the mediator’s manual: This is a creative new process; mediation is confidential; today we’ll explore “win-win” approaches to settling your case; there’s a lunch menu on the credenza; don’t leave until I tell you today’s session is over. There were a few more, but you get the point.
New Information: One Way To Help Your Client Save Face
The mediation had dragged for an entire day, and we hadn’t made much progress. The other side said they couldn’t give any more, and we wouldn’t, either. The mediator’s proposal that followed was the best deal we’d ever get and, frankly, it was the right number. But my client’s COO reacted instantly, calling in a “no” on his way home. Our answer was due to the mediator in in 24 hours.
Zen Unicorn: 4 Mediator Marketing Lessons From Seth Godin
Marketing guru Seth Godin isn’t a mediator and, as far as I know, doesn’t even know what one is, but that doesn’t seem to matter. From my perspective — the perspective of one who often selects the mediator — the marketing lessons in Zen Unicorn are tailor-made for mediators and settlement professionals.
A Simple Thank You
Yesterday I got to spend a little time with Michael Maslanka, whose Blawg 100-listed Work Matters site many of you might know. As Mike and I shared ideas and perspectives on Web 2.0, blogging in general, and the true sense of community that drives it all, I reflected a bit on 2009 and the people and personalities that make Settlement Perspectives what it is.
Insurance Coverage: 4 Rules And 10 Tips For Policyholders
When the big case comes in, will you be ready for it? As you work to better understand your story, lock down your documents, and brace for the PR impact, what else do you need to worry about? Unfortunately insurance coverage is often way down the list — a mistake most don’t realize until it’s too late.
Delivering Bad News In Negotiation: 3 More Tips
Last week we discussed why a small group is usually a better audience for bad news in Delivering Bad News: How Big Is Your Conference Room? Yet if small group delivery is not an option, what else can you do to get a difficult message across? Three tactics come to mind.
Delivering Bad News In Negotiation: How Big Is Your Conference Room?
The conference table had 40 chairs, and my client’s team filled almost half of them. We had been asked to show up with the folks needed to get a deal done, and the backchannel weekend chatter had all been positive. As the meeting began, our optimism crashed as the other side went on the attack, denying my client’s most important request and questioning why it had ever been included.
Early Case Assessments: More On The ECA Toolkit From PD Villareal
“In 60 days . . . you will know 80 percent of what you will ever know about a case.” PD Villareal’s quote was critical to our efforts to define Early Case Assessment in 2008 as we started our series on ECA, and we’re always happy to hear more from him. Fortunately, an interview with Villareal in this month’s Metropolitan Corproate Counsel gives us just that.
CPR Publishes Early Case Assessment Guidelines
You can’t settle your case before you know what it’s worth — or at least you shouldn’t — so we discussed why it’s best to value your dispute before settlement discussions start a few months ago. This fact has driven an entire series on Early Case Assessments here on Settlement Perspectives, and it’s clear I’m not the only in-house ECA fan out there.
The Partner Focus Group: An Easy Way To Get The Extra Perspective You Need
There’s something exciting about a war room as the big case turns toward trial, and ours was no different — witness notebooks, research files, box after box of “hot” documents, and a whiteboard with the latest graphic to explain it all. After days in that war room we began to wonder: Why won’t the other side settle? How could they not understand how bad their case was?
Ambiguities In Rule 68: Why Are They Relevant To You?
If you see an ambiguity in a rule, is it your job to fix it? Maybe it is, maybe it isn’t, but one thing’s for sure: until the rule changes, you have to deal with it as it is. Like it or not, uncertainty creates risk as well as opportunities — for you and for the other side. Whether you react to either is up to you.
Advanced Decision Tree Analysis In Litigation: An Interview With Marc Victor, Part II
For advanced decision analysis in litigation, where do we start? Last week we began to take our series on decision trees to the next level with Part I of our interview with Marc Victor of Litigation Risk Analysis, Inc., who pioneered the use of decision trees in dispute resolution and litigation in the 1970s. This post is Part II of that two-part interview, in Q & A format.
Advanced Decision Tree Analysis In Litigation: An Interview With Marc Victor, Part I
Decision Tree Analysis isn’t new to litigation, and it isn’t new to this site either — we discussed the basics and more a few months ago. But when you’re ready for an advanced take on the subject, where do you turn? All roads lead to Marc B. Victor, Esq., who pioneered the application of decision tree analysis to litigation in the 1970s.
UDR: An Introduction To Unconventional Dispute Resolution
As I have said before, if you really want to cut your litigation costs, step one is to have less litigation. Step two, however, is just as important: actively manage what’s left. This post will explore a great way to do both — UDR.
When Not To Negotiate: My Tree, My Neighbor’s House
How do you negotiate with your neighbor as your tree sits on his roof? The subject line only read “Tree Down,” but I began to wonder. The irony wasn’t lost on me as I scanned the rest of the message. A storm, our tree, our neighbor’s house, and a scramble to respond — all as I sat in a seminar on advanced dispute resolution techniques two time zones away. I was soon reminded of a valuable lesson in negotiation that most people never get: Do you even negotiate at all?
Negotiating a Debt Restructuring: The Out of Office AutoReply
As I write this I’m on yet another plane ride, but this one’s different. I’m flying home following some of the most intense, important negotiations I’ll ever be a part of. This isn’t a post about the details of our negotiations, since it’ll never be appropriate to write about most of those. Today I write simply to ask for your patience, because I won’t be posting much for the next month or two.
Settlement Advice: Avoid the Assembly Line
The other day I wrote a post about trust. It was a simple post, really. I recounted a story about a recent tire purchase where I asked for four new tires, and my service rep convinced me I only needed three. I trust her more now than I did before, and to most this would hardly be a controversial result. It took a lawyer at Legal OnRamp to turn this ordinary lesson in trust into much more.
Claims for Attorneys’ Fees: How Rule 68 Can (Sometimes) Help
Most lawyers in federal court believe that Rule 68 isn’t much of a threat, and for the most part they’re right. We discussed why this is true previously, but in that same post we highlighted one noteworthy exception: Rule 68 can cut off plaintiffs’ claims for attorneys’ fees in some cases. Today we’ll discuss when that might be, and how you can make Rule 68 work for you.
One Tire Too Many: An Unexpected Lesson in Trust
The story might be better if I could make it more dramatic, but tires aren’t all that exciting. My car had turned 5 and rolled past 45,000 miles, and there was little debate — I needed new ones. I braced myself for an expensive day, pulled into Sewell Lexus, and asked for four new tires. My unexpected lesson in trust came when my service rep suggested that wasn’t really what I needed.
Why Should You Try a Decision Tree in Your Next Dispute?
We recently explored what decision trees are and how to create them in Decision Tree Analysis: The Basics. While it’s important to revisit the basics on occasion, it seems the biggest hurdle for decision trees isn’t teaching people that this tool is out there — it’s convincing mediators, lawyers and their clients to actually try them in the first place. Why should you?
Decision Tree Analysis in Litigation: The Basics
I remember my first mediation decision tree. It was late in the day, just before impasse, and our mediator was desperate to show my client and me that we had misvalued the case. As he sketched it for us the approach made sense, but that was no time to pick up a new technique. His effort ended no different than most attempts to learn about decision trees on the fly — with a confused client, a frustrated mediator and a lawyer about to change the subject.
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.
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?
The Mediator’s Proposal: A Great Tool For Yesterday’s Disputes
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 they used to be.
Get To The Point, And Get It Across, With A Mediation Mind Map
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.
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.
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.“
Blink: Why No One Starts with a Clean Slate
The call comes in from out of the blue. You don’t know her; it’s Jen Spaziano, and she represents the company your client is — or perhaps was — merging with. Apparently there is a problem, and she is proposing to mediate before litigation. Your fingers work the keyboard to figure out who she is while she’s still talking: Skadden. Partner. Woman. Pepperdine Law 1995, summa cum laude. Boston College undergrad. You begin to react. Do you respond any differently than if the call came from Bill Adams? Of course you do.
A Bird in the Hand: Just Send a Check to Settle Your Case
I have an old friend who told me how one of his plaintiffs’ cases — the one sure to go to trial — finally got resolved: ”They kept hitting me with bigger and bigger checks until I had to settle.” He has a great story, but this post isn’t about settling big cases with big checks. It’s about settling smaller cases with even smaller checks.
Better Settlements From Better Information: Early Case Assessments IV
As we have discussed before, getting your ECA done — gathering the information required by the Early Case Assessment Checklist discussed in Part II and Part III of this series — requires an up-front investment. This post will tell you why, if you plan to settle your case, a thorough Early Case Assessment will be worth that investment.
Putting the Checklist into Action: Early Case Assessments Part III
In Part II of this series we outlined the 15 elements of the Early Case Assessment checklist, but a checklist alone isn’t enough. How an ECA works in practice — actually getting what’s on the ECA checklist done — isn’t quite the paint-by-numbers exercise it might seem to be. The following are 4 important ideas, admittedly based on mistakes I have made, that will make your ECA efforts more effective.
What Can Yard Signs Teach Us About Negotiation?
As a wide-eyed sophomore in charge of a campus political campaign in 1984 I pushed bumper stickers and buttons into the hands of as many supporters as possible to sway the undecided — if I could blanket the campus with my candidate’s bumper stickers, undecided voters would follow the lead of their neighbors and support him too, right? But is that really why campaigns print bumper stickers?
Easier Said Than Done: Early Case Assessments Part I
et’s face it: new lawsuits rarely come at convenient times. At the outset, they are rarely anyone’s first priority. Soon enough, legal wrangling sets in — deadlines approach, extensions are brokered, and the plaintiff’s perspective advances unrefuted. The case becomes a problem everyone seems willing to pay $50,000 a month for until they’re ready to deal with it.
The Early Case Assessment Checklist: Early Case Assessments Part II
The Most Important Word in Negotiation
High-stakes deals attract some of the best negotiators, and it’s always fun to see the latest techniques in action. Many of the most sophisticated dealmakers and lawyers are eager to show that they’re on the cutting edge of the negotiating game, impressing their clients with advanced moves from Getting to Yes to Start With No to countless others. Sadly, they often miss the point.
How Do You Settle Halfway? Settlement Structures Part II
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 dispute to “streamline the matter, limit expenses, and refocus the parties on resolving what’s left.” While Part I outlined several high-level examples of how it works in theory, here’s a successful example to demonstrate how settling halfway can work for you.
You Can Win By Settling Halfway: Settlement Structures Part I
“If you are going to do a half-ass job, don’t do it at all.” My dad gave me that advice years ago, and I never forgot it. But if you have an important dispute, settling it halfway may be a victory in itself.
One Reason to Manage the Other Side's Expectations
There’s an old saying that “victory has a hundred fathers, but defeat is an orphan.” It might have taken me a long time to learn why, but there is a good reason you should put that lesson to use at the beginning of many cases.
Rule 68 and Offers of Judgment, Part I: How They Work and Why You Should Care
I once had a client tell me: “I’m in the outsourcing business, not the litigation business.” He would probably read the title to this post and say something like: “I’m a client. Why do I care about rule anything?” Whether you are a client or a lawyer involved in US litigation, Rule 68 and similar state rules are important to you for two reasons: they can get cases resolved when nothing else can, and few lawyers use them effectively.
Why We Can't Just Cut to the Chase: Acceptance Time in Negotiation
Not so long ago I was in Cleveland mediating a fairly complex commercial dispute. My client had a plane to catch at the end of the day but, as is often the case, he really wanted a good deal. Based on each side’s positions and the “dance” to that point, we both knew where the case would probably settle. At about 3:00 in the afternoon he looked at his watch and asked a question most of us have heard before: “Why don’t we just cut to the chase, offer what...