Arbitration & Mediation

More Ways to Commit Legal Malpractice as a Mediation Advocate

Posted on September 16, 2009
 If you didn't already understand how to protect your mediated settlement agreement from challenge based upon statements made during the mediation, you do now. But wait a minute!  Is that what you want?   What if your client entered into the agreement only because its opponent made a material misstatement of fact?  What if one of your co-defendants challenges your settlement agreement as not having been made in good faith, thus exposing your client to potential liability for indemnity or contribution?  Can you win the "good faith settlement" challenge without the testimony of the participants in the mediation?   In a comment on yesterday's post, Los Angeles mediator Joe Markowitz noted that: Parties are entitled to walk out of a mediation with a whole range of outcomes, from a completed settlement agreement, to a term sheet, to an oral understanding, to a promise to think over the other side's last offer, to a promise to see the other side in court! As long as both sides understand what they are getting at the conclusion of the mediation session, there should be no basis for a malpractice claim for any of these outcomes...

Russia and Bank of New York Mellon Use Litigation as an Opportunity to Make a Business Deal

Posted on September 16, 2009
 Just like I'm always saying -- this from the Wall Street Journal Law Blog  [T]he Bank of New York Mellon has reached an agreement to settle a $22.5 billion lawsuit by the Russian government for $14 million. The deal was reportedly reached after the two sides made a separate deal for a trade-financing pact...

Yet Another Way to Commit Malpractice: Draft an Unenforceable Arbitration Clause

Posted on September 16, 2009
Before I begin to get hate mail from attorneys about this series, let me say that it is meant to sound the alarm, raise red flags, and make attorneys overly cautious so that our clients wouldn't even ever think of suing us for malpractice.   I don't mean to suggest here that drafting an arbitration clause a Court refuses to enforce or to apply to a given claim constitutes malpractice...

Call Your Carrier? Because of Negligent ADR Advocacy? YOU BETCHA!

Posted on September 15, 2009
That's not a summons and complaint for malpractice, is it?  Because of something you didn't know about ADR advocacy?  C'mon!  ADR is all about avoiding litigation, not creating it, right?  The good news is that there hasn't yet been an ADR malpractice suit of note...

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The Judicial Branch Rejects the Executive Branch's Settlement with Financial Institutions

Posted on September 15, 2009
I'll leave opinions and conclusions about this New York Times news item (S.E.C. Settlement with Bank Over Merrill Bonuses) to my readers as I give myself time to ponder its implications.  Excerpt below; full article at link above. As President Obama traveled to Wall Street on Monday and chided bankers for their recklessness, across town a federal judge issued a far sharper rebuke, not just for some of the financiers but for their regulators in Washington as well...

Diplomatic Engagement to Settle Your Commercial Litigation

Posted on September 14, 2009
Today's New York Times Op-Ed piece on "diplomatic engagement" (Terms of Engagement) as a strategy for "chang[ing] [Iran's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," offers good strategic negotiation lessons for mediators and mediation advocates alike...

Negotiating Friendship at the California State Bar Tweetup

Posted on September 12, 2009
O.K. I just couldn't resist posting this.

Power and Trust as Negotiation Strategies and the Lessons of The Cove

Posted on September 08, 2009
Powerlessness and silence go together; one of the first efforts made in any totalitarian takeover is to suppress the writers, the singers, the journalists, those who are the collective voice.   - Margaret Atwood Every year, a town in Japan named Taiji kills 2300 dolphins and small whales...

Burlage: "arbitrators have a great deal of power, but not absolute power"

Posted on September 06, 2009
I recently reported with surprise the Second Appellate District's Burlage opinion in which it refused to vacate the trial court's vacation of a $1.5 million arbitration award based upon the arbitrator's rejection of evidence that the damages sought were not in fact suffered by claimants...

The Inaugural Issue of the Federal Bar's RESOLVER Hits the Newsstands!

Posted on September 05, 2009
Welcome to the first issue of the Federal Bar Association's ADR Section Newsletter, The Resolver. (right, our fearless leader, Simeon H. Baum) The subjects covered in this issue include the chaotic state of federal mediation confidentiality protections [by Phyllis G...

California Appellate Court Reverses Arbitration Award

Posted on September 04, 2009
More arbitration surprises in California! No, this isn't becoming an arbitration blog, but the threat of arbitration directly impacts the value of litigation and negotiating the price of a release from litigation is what I spend my days helping attorneys negotiate...

Further Thoughts on Arbitration Clause Unconscionability in California Contracts

Posted on September 03, 2009
I belong to two groups on LinkedIn that any attorney who arbitrates cases or who counsels clients to put arbitration clauses into their contracts should join.  They are the Greater AAA Connection, which describes itself as:  a professional and social network of current and former employees, neutrals, and students of the AAAU from around the world...

The Continuing Perils of (Potentially) Uneforceable Arbitration Agreements

Posted on September 02, 2009
Fellow State Bar Convention panelist Brian Reider recently alerted our panel */ to the Fourth Appellate District's August 26, 2009, decision Parada v. Superior Court (.pdf)  which creates a slippery slope of questionable enforceability for Courts presented with motions to compel arbitration...

Justice Chaney, Arbitrator Rothman and Litigator Goldberg Speak on Arbitration Advocacy in Complex Commercial Litigation

Posted on August 31, 2009
As advocacy in commercial arbitration becomes increasingly sophisticated, costs can skyrocket and the process can drag on unless counsel and the arbitrator(s) utilize these cutting-edge tips in the case management process. Topics will include motion practice, limiting discovery (including electronic discovery), and the use of stipulations and time limits to manage the proceedings...

How to Manage Your Negotiating Team from Harvard Business Review

Posted on August 25, 2009
The last time I trained an in-house legal department, I asked every group manager this question:  if I could leave a silver bullet behind, what would it be?  The response was unanimous from this well-run Fortune 500 Company:  fix our relationship with the __________ Department:  it chronically undermines our negotiations with outsiders...

The Five Most Effective Ways to Break Negotiation Impasse: Part III

Posted on August 21, 2009
In that most famous of sales movies,David Mamet's Glengarry Glen Ross, the under-appreciated Alec Baldwin gave his sorry group of cold-callers the prime directive of sales:  Always Be Closing.  You close when you convene the negotiation, close when you open it, close when you ask diagnostic questions, close when you offer your bargaining partner coffee, and close by MAKING THE FIRST OFFER...

Gone Fishin' See You in September!

Posted on August 21, 2009

The Five Most Effective Ways to Break Negotiation Impasse: Part V

Posted on August 21, 2009
Know and Use the Rules of Influence Nearly all negotiators know Robert Cialdini's six 'rules' of influence: reciprocation, commitment and consistency, social proof, liking, authority and scarcity. They are easy to remember because we are all influenced by them every day...

The Five Most Effective Ways to Break Negotiation Impasse: Part IV

Posted on August 21, 2009
Give a Reason for Every Number  (right, the ultimate in lame reason giving:  the dog ate my homework!)  To reinforce anchoring and framing effects of first offers and offer-characterization, always state the reason you are valuing the item to be traded in the manner you are...

The Five Most Effective Ways to Break Negotiation Impasse

Posted on August 19, 2009
I begin a series today on what I believe are the five most effective ways to break impasse.  This morning's impasse-breaker will aid business people negotiating the settlement of a commercial dispute the most because it requires the generation of hitherto unseen business advantages to sweeten the pot...

The Five Most Effective Ways to Break Negotiation Impasse: Part II

Posted on August 19, 2009
Someone recently told me that you can't argue with a story, only with a position or another argument.  That's why narrative is such a powerful impasse breaker and why asking diagnostic questions, which elicit stories rather than arguments, is so often often able to bridge seemingly unbridgeable gaps between the parties' bargaining postures...

Best Early Case Assessment Practices

Posted on August 18, 2009
I cannot recommend John DeGroote's Settlement Perspectives blog too highly or too often.  This week he praises CPR's new Early Case Assessment Guidelines.  Praise from John is hard to come by.  I join in his comments below and suggest that all my readers click on the link below for his excellent commentary...

Negotiating Rational Choice, Statistics and the Future of Mankind

Posted on August 16, 2009
  (right:  Bueno de Mesquita's "Logic of Political Survival") The book at right was brought to my attention for the first time by this highlighted text in Good Magazine:  In the foreboding world view of rational choice, everyone is a raging dirtbag...

Letter From Cambodia: American Cambodians for Justice

Posted on August 14, 2009
My name is David Blackman and I am a trial lawyer who practiced in Sacramento, California, for approximately 32 years before coming to Cambodia, where I have made my home for the last three years. I have been a member of the California Bar Association since 1972...

Family, Collaboration, Reciprocity and SOCIALISM?????

Posted on August 13, 2009
From Indexed -- In Theory at Least. And this is all I'll have to say about universal health care. The way in which this Index Card wisdom applies to legal practice was addressed by me in the sadly defunct complete lawyer article Savvy Lawyers Value Their Human Capital These are hard times and none of us is immune...

Closed Dutch Auctions from Mediator Ralph Williams, III

Posted on August 12, 2009
Ralph Williams August 2009 ADR Tip     _______________________________________________________________________________ When 50-50 partners break up, the Closed Dutch Auction is an effective way to set the buyout price. The partners exchange sealed bids stating the price at which they will sell their 50% share...

Negotiating the Power of Reciprocity with "The Go Giver"

Posted on August 08, 2009
  A friend recently reminded me of a book review I wrote for one of those "get rich" books The Go Giver (below) for the sorely-missed Complete Lawyer.   I reprint it here in the Negotiation Blog because I talk a lot about the power of reciprocity in bargaining...

Negotiating the Recession with Lawyer Connection

Posted on August 07, 2009
Connecting for Job Help By Barbara Rose Gwynne Monahan is not a lawyer, but she knows what it's like to lose a job. So the Twitter thread she spotted in May about lawyer layoffs caught her attention. 'Wondering why laid-off attorneys don't band together and start a new law firm,' a lawyer tweeted...

You Decide from Mediate Dot Com

Posted on August 06, 2009
   This new video just in from Mediate.com.  No, it won't inspire attorneys to mediate sooner than they already do nor drive any attorney to your mediation door.  But it will introduce mediation to young people as a dispute resolution method that is in tune with the times - collaborative, reciprocal, fast, flat and flexible...

Contact Landlord through Mediation Program Advises the San Francisco Chronicle

Posted on August 03, 2009
In the article Mediator can help with PayPal rent payment shift, the Rent Watch column of the San Francisco Chronicle (SF Gate) advises that a landlord's attempt to force renters to pay through PayPal is not strictly legal but, rather than risk a notice for failure to pay rent based on a complex legal analysis, contacting the landlord through a mediation program would be a safer method to resolve this issue...

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