In my mediation practice I have found that cases are much more likely to settle when the parties approach the process collaboratively. For many advocates, their role in the opening session is to soften the other side. This generally means some version of a toned down jury argument. These statements are almost always followed by … Read more
Any article on winning must start by defining the term. Unlike most of what we do as litigators, mediation never results in an absolute “win.” Some settlements feel more like wins than others and settlement alone is not the right judge of win or loss. With motions, trial, or arbitration it is usually possible to … Read more
In my experience, apologies in business or civil litigation mediation are the exception not the rule. There may be good reasons for this but you should never underestimate the potential of a good apology for reaching a resolution. Amongst the recent revelations coming from #MeToo the story of Dan Harmon and Megan Ganz did … Read more
Benjamin Franklin is credited with saying that “Necessity never made a good bargain!” In his wonderful book, Practical Negotiating, Tom Gosselin contends that “In negotiating, power is a function of alternatives.” Gosselin is right, of course, and hopefully a discussion of alternatives brings to mind Ury & Fisher’s BATNA (Best Alternative to a Negotiated … Read more
This post is part of our Guided Choice Mediation series, where we explore what it is, why it improves on traditional mediation, and how it works. Guided Choice Mediation is an evolving process that expands and builds on more common place facilitated settlement conferences. Even a cursory review of Guided Choice principles demonstrates its potential to facilitate early resolution … Read more
Resolving commercial and construction disputes is expensive. According to one source, 98% of commercial disputes are resolved prior to trial or arbitration. However, most are not resolved until the parties have spent an enormous amount of time, energy, and money on discovery and motions. Even worse, the parties are usually unable to continue a working … Read more
I preface this post with the disclosure that in my practice I serve both as an arbitrator — AAA administered and privately administered — and as an advocate in arbitration. In talking to lawyers throughout North Carolina, I hear the same statement over and over again: I would never advise my client to opt for … Read more
In spite of an acknowledged preference for interest-based “principled” negotiation, I acknowledged in my previous post that every civil mediation eventually becomes a positional battle. This is largely because virtually every civil litigation is resolved based upon an exchange of money and litigation combatants are rarely seeking to preserve a long-term relationship after resolution. If, … Read more
One of the primary tenets of Roger Fisher and William Ury’s book “Getting to Yes” is that negotiations should focus on interests not positions, i.e., avoid positional bargaining. Positional bargaining takes place when each side takes a position, argues for that position, and reluctantly makes concessions from the opening position. Fisher & Ury instead contend … Read more
As a 49ers fan I have been intrigued by stories about the former head coach, Jim Harbaugh. His brother, Ravens coach John Harbaugh, tells the story of how as a Little League baseball player Jim threw high and tight to a female batter on the other team. Apparently this caused some stir but Jim unapologetically … Read more