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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 an unconvincing statement that they are present in good faith to try and settle the claims. The unstated but clearly understood meaning is we are here to settle “as long as it is on our terms.”  In my experience, this is not the best way to get adversaries to listen, which should be your first priority. In this excellent article, Jeffrey Krivis, presents a comprehensive strategy for developing a collaborative approach to settlement negotiations when confronted with a competitive approach on the other side. Following extensive computer testing of the Prisoner’s Dilemma, Professor Robert Axelrod

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 distinguish a win from a loss, even when there is some kind of compromise verdict. However, in mediation if the parties reach an agreement, it is always a function of compromise. So, how do you define a win in mediation? Of course there are many possible definitions of a win: e.g., Fisher & Ury would define a win as a negotiated settlement that is better than your BATNA.  After hundreds of negotiations as both a neutral and an advocate, I do not believe there are any universal definitions of win and loss; each party goes

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 because she was crowding the plate. For him the episode was simply a matter of competing to win.  From the stories about great athletes it seems that many (maybe all) never stop competing.  Everything is a competition. The point is that some people are more naturally competitive than others. In his negotiation skills course, Pepperdine Law School Professor Peter Robinson explained that some peoples’ natural instincts are to be competitive and others are naturally more cooperative.  According to Robinson, neither is necessarily better than the other but recognizing our own