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 not make a lot of …
Power in Negotiation
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 Agreement) concept. Gosselin goes further …
Guided Choice Mediation: Nuts and Bolts
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 of complex legal disputes where …
Exciting New Alternatives for Claims Resolution
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 relationship after this warfare. Fortunately, …
Can Arbitration Be Saved?
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 arbitration over litigation. Why is …
The Mediator’s Role In Positional Bargaining – Part 1
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, in fact, negotiations in mediation …
Is Positional Bargaining Unavoidable?
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 that wiser and more efficient …
Are You Competitive or Cooperative?
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 explains that he had to …
New AAA Rules for Fixed Time & Cost Construction Arbitration
The American Arbitration Association recently announced new streamlined rules for arbitration specifically designed for the construction industry. AAA believes that the new procedures are most appropriate in cases involving discrete issues that require limited document exchange or other discovery. The Rules definitely anticipate the parties cooperating at a level that is sometimes difficult to achieve in practice. The Rules are …
Amazing Face Reading
At a recent meeting of a trade group, the lunch time speaker was Mac Fulfer, a lawyer and professional face reader. So what is a face reader and why am I talking about it in a blog about negotiation skills. Mr. Fulfer contends that there are about 150 facial characteristics that can be read to learn useful insights about a …
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