Arbitration & Mediation

Open Source Negotiation of Public Works

Posted on February 10, 2010
You might recall an earlier post in which I reported the (both expected and astonishing) results of an open source project in which researchers "opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists," resulting in the resolution of one-third of the problems that the research labs had been unable to solve without assistance...

Featured Blogger Interview at Mediate.com

Posted on February 08, 2010
Mediate.com - where I published my first article on mediation - was kind enough to publish an interview with me about my mediation career and blogging experience today.  Below an excerpt and at the link, more than you ever wanted to know about my legal and ADR career...

Negotiating Book Sales: Choosing the Best Cover

Posted on January 31, 2010
UPDATE:  Thanks to the many great comments I've gotten here, at LinkedIn, on the book's Facebook Fan Page, and on the book's website I've shifted my focus from trying to depict the Asshole on the cover to depicting the Asshole's victim/s.  Along those lines, I'm considering using an image somewhat like this cartoon by the great legal cartoonist, Charles Fincher of LawComix...

Motion to Compel Lunch: Granted

Posted on January 29, 2010
 Thanks to Roger Wood at the Association Law and Other Musings Blog for passing along the Order for Lunch issued by the Maricopa County Superior Court (.pdf) excerpted below.  Roger generously shared this truly glorious Order (and supporting opinion that you can read in the ...

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Negotiating Fallacy: Diane Levin's Brilliant Fallacious Arguments Posts

Posted on January 26, 2010
If you're following this blog but not Diane Levin's Blog The Mediation Channel, I have good news for you.  Diane is an extremely focused, disciplined and lively writer.  She's also one of the brightest and most canny negotiators, mediators and negotiation trainers I know...

"Man" Up to Negotiate or Prevent Your Own Disputes at Sleeping Beauty's Castle

Posted on January 21, 2010
Conflict is in the house.  The evil fairy surrounded the castle with deadly thorns.  The "good" fairy put everyone in the castle to sleep.  Will you be the valiant Prince in your own dispute story?  Or are you the prize?  The beautiful one who would prefer to remain unconscious rather than address the great battle between good and evil represented here?  Did you hire a lawyer to resolve your dispute for you?  Will he make it to the castle in time?  Or will he spend the bulk of his energy erecting more obstacles to prevent your adversary from reaching you...

We are a Bargaining, Haggling, Negotiating, Wheeling and Dealing Twitter World

Posted on January 16, 2010
We bargain with toddlers, haggle with street vendors, negotiate legislation, make deals with car salesmen, craft golden parachutes for failed "Tonight Show" hosts, use friendship as a bargaining chip, cut deals with the bartender, negotiate the complexities of culture through story-telling, seek to raise our salaries during a recession, and, wheel and deal on rookie wage scales, all in a matter of hours as chronicled by twitter...

Negotiate a Raise in this Economy? Maybe That's Not What You Really Want

Posted on January 12, 2010
Check out reporter Kevin Fogarty's article How to Turn a Job Offer into a Raise over at The Ladders, an Executive Search company for the six-figure set.  Kevin recently interviewed me about negotiation strategies with a current employer when an eager new suitor comes a'calling...

Do Attorneys' "Get in the Way" of Mediator Assisted Negotiations?

Posted on January 12, 2010
The not so secret opinion among mediators is that attorneys make settlement more difficult.  Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators  tend to say "mediation would great if it weren't for the lawyers...

Don't Leave Money on the Table or Pay Too Much for that Release this Year

Posted on January 11, 2010
  Don Philbin, the author of this must-read article (click on the image for the .pdf) on the reasons you walk away from negotiations fearing you've either left money on the table or paid too much for what you receive in exchange, is an attorney-mediator, negotiation consultant and trainer, and arbitrator...

Unique Arbitration Procedure for Resolving Claimed Mishandling of 90,000 Reinsurance Claims O.K.'ed by Ninth Circuit

Posted on January 08, 2010
It appears I'm not the only blogger to open up a second home this year.  Greg May of the California Blog of Appeal just launched a companion blog covering the Ninth Circuit here.  I cover Greg's analysis of the arbitration panel's handling of the complex reinsurance arbitration given a pass by the Ninth Circuit here...

Business to Business Mediation Examined at the Commercial ADR Blog

Posted on January 06, 2010
I've posted two pieces on non-litigated business to business mediations at the Commercial ADR Blog (here and here) in the context of a dispute between a medical marijuana facility and its neighboring tenant.  For reasons not entirely clear to me, the new blog has been generating a lot more comments than this blog generally does which pleases me and leads me to let the Negotiation Blog's readers know of the on-going conversation over there.

Settle It Now's Newstex Syndication, BlawgReview#245, CharonQC, Marlon Brandon, Sacheen Littlefeather and Conflict as Your Zen Master

Posted on January 04, 2010
I find many of my law blogging friends over at Newstex.  Now I've joined them here.  It used to seem odd to me that companies would bundle free blogs and that people would pay for the bundle.  With the advent of LawBox, the iPhone application that bundles federal and state codes along with law blog and law news content, I get it...

Got a new iPhone for the holidays? give yourself lawbox for the new year!

Posted on January 01, 2010
LawBox for iPhone. Carry your codes; the New York Times; ABA feeds; and, your favorite law blogs in your pocket along with the Federal Rules of Civil Procedure and Evidence. Not only is all of this free, if you're a legal blogger, you're highly likely to see your own blog here (copyright violation? perhaps but LawBox links to my negotiation blog after the first paragraph so it's just another way for lawyers to be introduced to my blog, which is fine with me)...

Ten New Year's (Dispute) Resolutions for 2010

Posted on December 31, 2009
I will practice restraint of tongue and pen When my anger flashes, I will pause to remember that behind every accusation is a plea for help When in the midst of a rancorous debate, I will remember to ask for the story behind the opinion I will remember that each of my fellows is struggling with burdens that, if known, would cause me to respond to them with far greater kindness I will remember that I, too, am subject to fundamental attribution error - over-ascribing intention to those whose behavior causes me real or perceived harm and over-ascribing circumstance to any behavior of mine that causes others real or perceived harm I will strive to practice my primary occupational purpose:  to stay emotionally sober and to help others achieve emotional sobriety When I do cause others harm, I will promptly admit my part in it, apologize, make amends and strive to avoid similar behavior in the future Of the primary responses to conflict -- suppression, avoidance, yielding, resolution, transcendence and transformation, I will strive for resolution, transcendence or transformation I will keep in mind that it is usually better to be happy than to be right I will strive to accept the things I cannot change; to rise to the challenge of changing the things I can, and to seek the wisdom necessary to know the difference...

Insurance Coverage Negotiation Case Study

Posted on December 29, 2009
There's a nice little case study over at my other blog - the Commercial ADR Blog - that you might want to check out if you represent policyholders or insurance carriers in coverage disputes or if you're interested in the power of anchoring and bracketing...

Value-based mediation fees? Listen to the conversation here

Posted on December 28, 2009
Value-based fees in the mediation and ADR world   Professional mediators Amanda Bucklow, Tammy Lenski and Diane Levin discuss the problems associated with hourly and project billing, and ponder the promise and challenges of value-based fees. Two resources were referenced in the discussion: Consultants and value-based billing proponents Alan Weiss and Wendy Werner.

Should HR Professionals Work Up the Courage to Negotiate Competitively?

Posted on December 28, 2009
Check out Kris Dunn's recent blog post at the HR Capitalist Retail and Religion - Now Inhibiting the Negotiation Skills of an HR Pro Near You... Though the reasons given for our negotiation hesitancy are insightful and, I believe, spot on, the post moved me to more or less use the HR Capitalist Blog's comment section to write today's post...

New Year's Negotiation Resolution: Dialogue with the Public Conversations Project

Posted on December 20, 2009
Click on the image for the link to the Public Conversations Project and join me in my New Year's resolutions to focus on our similarities and common interests rather than on our differences and conflicting goals; find common ground; share the experiences from which our opinions dervice (our stories); set aside argument in favor of dialogue; remember that each one of us is struggling with some great burden despite outward appearances; and, that squeezing the last nickel or concession out of our bargaining partner fails to recognize that we are all in this together...

Negotiating Social Media Future with Stephen Fry

Posted on December 19, 2009
For my readers' holiday viewing pleasure (particularly those who tweet!)

The Prisoners' Dilemma, Rawls' Theory of Justice and the Healthcare Debate

Posted on December 16, 2009
Healthcare Napkins All Napkin Presentation thanks to John-Folk Williams at Cross-Collaborate Cheyney Ryan, a philosophy professor at the University of Oregon, contributed a short but extremely useful article to the must-have Negotiator's Fieldbook entitled Rawls on Negotiating Justice...

What to do when your negotiation partner is a ghost

Posted on December 14, 2009
Some settlement negotiators chronically defer to the ghost negotiator "back in the home office."  If your mediator has been unable to make sure the party with full settlement authority is present or if your mediator surprises you by actually bringing the parties near settlement when you thought you were there just to get your mediation dance card punched, you might want to follow this advice...

Merging the IP ADR Blog with New Commercial ADR Blog

Posted on December 11, 2009
I'm migrating the IP ADR Blog to a new Blog Home called Commercial ADR – Business Solutions to Justice Problems.  I'll continue to post articles to the Settle It Now Negotiation Blog on matters of general interest to negotiators, including litigators who negotiate the settlement of lawsuits...

Flourish in 2010 without Changing Anything Other than Providing Your Workforce with Negotiation Training

Posted on December 09, 2009
Both of these images come from Improving Corporate Negotiation Performance, a Benchmark Study of the World's Largest Organizations (.pdf) I've taught in-house negotiators and corporate executives negotiation skills and I can tell you that not a single participant thought they were too negotiation-savvy to benefit from the training...

Music to a Mediator's Ears: Construction Mediation Works!

Posted on December 05, 2009
Yes, we do appreciate being appreciated so thanks to my great good virtual pal and construction attorney Christopher Hill for this post, Personal Thoughts on Construction Mediation.  Not only could I not have said it better myself, I've never been able to say it this succinctly...

Victim or Gold-Digger: Rock Hudson's Former Partner Marc Christian MacGinnis Passes

Posted on December 05, 2009
The man who brought suit against Rock Hudson for concealing his AIDS -- Marc Christian MacGinnis -  has died in Los Angeles of complications brought on by smoking cigarettes.  Despite MacGinnis' exposure to the HIV virus, he may never have contracted HIV; at any rate, the papers report that he did not die of complications arising from his exposure...

The ABC's of Conflict Resolution: "F" is for Friend

Posted on December 04, 2009
My Twitter account tells me I have 1600 'friends' and my Facebook page suggests that I accept someone new as a 'friend' nearly every day.  Despite our modern online age, however, people do not become 'friends' at the push of a button. We start friendships tentatively, with small admissions of fallibility that won't entirely rip away the costume of the person we're pretending to be...

No Need to Fear Foreclosure Mediation in New York Courts

Posted on November 30, 2009
A word to the wise about foreclosure mediation from the Buffalo News Business Today article, Fear stymies mediation.  Excerpt below.    Timothy Walker has one message for all the homeowners facing foreclosure in Western New York: If you get a letter inviting you to come to court, don't be afraid...

Best Ever Thanksgiving Post in the Blawgosphere

Posted on November 26, 2009
  men washing dishes -  an early alarm ends her Thanksgiving dream Just in case conversation grinds to a halt around your dining table — and the Baby Boomer Raconteur in your family can't remember the name of that movie he liked so much — here are a few topics that should liven things up and unloose a few tongues: Should obese people who take up two airplane seats have to pay double the fare? This is a great question for Uncle Vito, between mouthfuls, while he's reaching for that third helping of pumpkin pie...

What's Gratitude Got to Do with It?

Posted on November 25, 2009
(may I offer you a second helping of Jimmy Choo shoes with your turkey?) Before sharing Brian Solis' succinct and brilliant post the Benevolent Acts of Reciprocity and Recognition and Highlights from the Research Project on Gratitude and Thankfulness (excerpt below) I want to once again make a few remarks about what we all seek to achieve with rights and remedies (particularly in the post-scarcity society in which we too often forget we live): we want rights because we are genetically programmed and culturally conditioned to be fair (remember the Capuchin monkeys who, trained to work for "money" staged a sit-down strike when others doing the same work were compensated at five times the rate as their under compensated fellows); rights are meant to guarantee us equal treatment in the distribution of public benefits and resources; and, equal access to public and private accommodations; remedies are meant to restore private and public resources to those who have been deprived of them because some one; group; organization or governmental entity has broken one or more rules by which we have chosen to govern ourselves; and, money is a means to an end, not an end in itself and each of us desires money for the same reasons - control of our own destiny (power; self expression); access to the benefits of the social contract (FDR's four freedoms); security against an uncertain future (access to medical services and a mimimal standard of living if we become unable to care for ourselves); meaningful occupation; the opportunity to be of unique service to our fellows; love; and, joy (monetary sub-goals such as a pair of Jimmy Choo shoes are also simply a [misguided] means to achieve these ends)...

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