Arbitration & Mediation

Thinking Like a Mediator with TCL's The Human Factor

Posted on May 02, 2008
In the new issue of The Complete Lawyer, my fellow Human Factor columnists and I talk about what new tricks we had to learn and old skills we had to re-invent when we took the journey from legal to mediation practice.  I give you my section of the column below, encouraging you to link to the Human Factor here to read what my my good friends and colleagues Gini Nelson, Stephanie West Allen and Diane Levin have to say...

Resolve All Those Pesky Disputes with Forthright

Posted on May 01, 2008
This just in from Christina Doucet of the National Arbitration ForumForthright Launches as Stand-Alone Company New Company to Leverage Expertise and Leadership in Workflow System Based Transaction Processing and Resolution Solutions MINNEAPOLIS, May 1, 2008—Forthright, a global provider of transaction processing and resolution solutions, today announced its formal entrance into the marketplace as an independent company...

Getting the Parties to the Bargaining Table, Part II: Using Outside Settlement Counsel

Posted on May 01, 2008
In this part of the new series on getting the parties to the bargaining table, I interview former in-house Chrysler counsel and former Hogan & Hartson partner, Lew Goldfarb, who now has his own full-time outside settlement counsel firm.  For Lew's full bio and contact information, click here...

When Talks Reach an Impasse, Mediators Work their Magic

Posted on April 30, 2008
. . . from today's Los Angeles Daily Journal.The magician-mediator (and genuine journalist) quoted in this article is the delightful Jerry Lazar.Check out Jerry Lazar's Fight Nicely mediation blog here.      Mediation Magic - Get more documents

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The Barest Sketch of a Litigation Mind-Map

Posted on April 29, 2008

When the Judge Says "This Looks Bad on the Surface" Listen Up!

Posted on April 29, 2008
. . . because the jury is about to transform your $1.7 million commercial dispute into $352.7 million verdict . . .  read all about it in this 2001 story, After $1.7 million landed in the wrong account, CoreStates insisted it could seize the money...

MBA Students: Listen Up!! Negotiate Your First Salary

Posted on April 28, 2008
Check out today's Naked MBA post The Importance of Negotiating Your Salary.  Here's the best advice going:Practice Any good negotiator knows that you have to practice. Plan what you want to say and how you want to say it. Have mock negotiations with your friends or your career advisor...

Increase Your Bargaining Power with Writs of Attachment and Execution

Posted on April 28, 2008
If you aren't using writs of attachment in contract cases where the amount due is certain, you aren't using the most powerful means of increasing your bargaining power in litigation.Attend LACBA's Brown Bag Lunch with Judge James Chalfant at the Stanley Mosk Courthouse 111 N...

Bargaining with Giants: Negotiating with Wal- Mart

Posted on April 28, 2008
I'd just posted a piece on Negotiating from a Position of Weakness when along comes Harvard Business School Working Knowledge with an article about Negotiating with Wal-Mart by Julia Hanna. associate editor at the HBS Alumni Bulletin.  Below, one successful vendor's Wal-Mart Negotiation Rules...

Getting the Parties to the Bargaining Table, Part I

Posted on April 28, 2008
Is negotiation a political issue?You bet.Qureshi: Pakistan Won't Negotiate With Terrorists (RTTNews) - Pakistan's Foreign Minister Shah Mehmood Qureshi said Monday that his government would not negotiate with "terrorists" even as it seeks open dialogue with some militant groups...

Negotiating Happiness with Mind Maps: See Links by Clicking On "Continue Reading"

Posted on April 28, 2008
According to one Mind Mapping website, the hand-drawn associational webs were developed as a technique to help people learn more effectively by a man named Tony Buzan.   Buzan has gone on to be recognised as the world's leading authority on how to use the brain more effectively...

Negotiating from a Position of Weakness

Posted on April 27, 2008
I was cruising around the blogosphere this morning looking for links to the prime directive of all negotiations -- know your BATNA -- when I ran across this great 2007 post by Penelope Trunk of the Brazen Careerist -- How to Negotiate When You Have Nothing to Leverage...

Your Potential BATNA: The Great American Jury Trial

Posted on April 27, 2008
Thanks to Stephanie West Allen at idealawg (channeled to me this morning via the Forbes Business and Financial Blog Network) for the Famous Trials Website from Socrates to Moussaoui (and yes of course O.J.'s there).  (above, theDeath of Socrates by Jacques-Louis David)Here's Stephanie's announcement:Professor Douglas O...

Mediation as Leadership in the Eye of the Storm

Posted on April 27, 2008
This morning's guest blog -- Eye of the Storm Leadership:  Mediation as Leadership and Leadership as Mediation -- is by Peter Adler, PhD, President of The Keystone Center and author of Eye-of-the-Storm leadership: 150 Ideas, Stories, Quotes, and Exercises on the Art and Politics of Managing Human Conflicts...

How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility?

Posted on April 26, 2008
The provocative comment we're following is Jay Welsh's remark that to settle most cases the Plaintiff has to accept a lot less than he wanted to recover and the defendant has to pay a lot more than he ever imagined paying.  And the response we're replying to is Canadian lawyer Michael Webster's:When the issues have been crystallized into legal ones so well, you are in a lose/lose situation...

There Are No Non-Relational Zero-Sum "Pure Money" Negotiations: Part I

Posted on April 26, 2008
Canadian Lawyer Michael Webster asks about Jay Welsh's comment (see videos) that "in a mediation the plaintiff has to settle for far less than they thought and the the defendant has to pay far more than they ever thought."  "So," asks Webster, "this would be the lose/lose theory of mediation?" I know when Michael's being sarcastic but decided to respond seriously by noting that Jay himself  used the phrase "lose-lose...

L.A. County Bar Association's Peer Mediation Program

Posted on April 26, 2008
This is a great video that I highly recommend to everyone interested in ending violence in our public schools -- particularly Los Angeles attorneys.  I "judge" (the DRS folks like to call it "coaching") local peer mediation "competitions" (the DRS folks don't like the word "competition)with students as young as ten and as old at 17...

Mediating and Arbitrating International and Complex Commercial Disputes

Posted on April 26, 2008
We continue today with our multi-part series of interviews with JAMS GC Jay Welsh in which he and  Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas, talk about mediating and arbitrating international and complex commercial disputes...

One of the Most Experienced Guys in the Business Reveals What Makes a Great Mediator

Posted on April 25, 2008
Part III of the CPR Jay Welsh interview with Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas.Answer:  there's not a single style. 

Mediator Jerry Kurland Nominated to the Jerrold S. Oliver Award of Excellence

Posted on April 25, 2008
You haven't really experienced unvarnished brilliance in a mediator until you've spent some time co-mediating a construction case with Jerry Kurland of JAMS.  When I say "co-mediate" I'm talking 70% Jerry, 29% former Oliver Award winner Judge Victoria Chaney and 1% Vickie Pynchon...

Negotiating Disaster with Pawprints of Katrina

Posted on April 25, 2008
I talk a lot in this blog about community; about the need for all of us to understand that when you drill a hole in the other guy's side of the boat, you sink too.  There's something about disaster on a grand scale that brings the best out in us -- creates heroes...

JAMS General Counsel Jay Welsh Talks About Mediation "Styles"

Posted on April 25, 2008
Part II of the CPR interview with JAMS G.C. Jay Welsh below.  Here, Jay talks about mediation styles, including so-called "win win" or interest-based as opposed to distributive or zero sum bargaining; joint session vs. separate caucus mediation...

The History of JAMS: an Interview with JAMS General Counsel Jay Welsh

Posted on April 25, 2008
The International Institute of Conflict Prevention and Resolution (CPR) is one of the premiere mediation organizations in the world.  Though I'm a neutral on CPR's insurance coverage ADR panel, even I cannot access all of the site's content because I'm not also a member...

The Best Time to Settle International Disputes? Keep Your Eye on Currency Exchange Rates

Posted on April 24, 2008
It is a truism that litigation tends to get worse rather than better over time.  This is as true in the law as it is in physics -- things fall apart.  Your client's clean and righteous narrative tarnishes over time; grows more complex and filled with contradictions...

Negotiating Your Mid-Life Career Crisis with 360 Career Coach Lisa Gates

Posted on April 24, 2008
Practicing law, particularly litigation, is often frustrating, sometimes humiliating, and frequently simply simply dispiriting.  On the other hand, the practice of law can be thrilling, intellectually stimulating, challenging, absorbing, and a darn good way to make a good living...

"At the Table" Negotiation Strategy

Posted on April 23, 2008
Detail on each of these points soon.  Image and text from Babcock Business Strategies here.This is useful in actual "at the table" negotiations. Negotiations Made Easy Understand their interests. If necessary, change the rules of the game...

Isolated? Miss Firm Practice? Join the ADR Online Discussion Group

Posted on April 23, 2008
Mediation is a far lonelier profession than legal practice.  If we are actively mediating, our daily work is done confidentially within four walls without observers or colleagues with whom to discuss our questions and concerns.  If you were a litigator like I was, your days once teemed with colleagues, clients and observers -- associates, judges, co-counsel, joint defense attorneys, strategic partners, associates, clerks, legal assistants and, yes, the guys in the mail room!  You don't truly appreciate what a vibrant community a law firm is until you begin a mediation practice where -- shoot -- you don't even get to act anymore!Now there's a place for us online to share our thoughts, opinions, ideas, feelings, even our insecurities about this wide-open, unregulated, un-standardized practice of ours -- an ADR listserv started by a man known to and respected by so many of us -- mediator Lee Jay Berman...

There are some days when everyone needs just a little encouragement

Posted on April 23, 2008
Until one is committed, there is hesitancy, the chance to draw back-- Concerning all acts of initiative (and creation), there is one elementary truth the ignorance of which kills countless ideas and splendid plans: that the moment one definitely commits oneself, then Providence moves too...

What is "Special" about Wage and Hour Class Action Mediation by Jay McCauley

Posted on April 22, 2008
I promised you a series of posts on mediating complex and sophisticated commercial mediation.  Here's what I'm really most interested in doing -- starting a high level conversation among commercial litigators and commercial mediators about the best way in which we can help one another help your clients to achieve the best resolution possible to their commercial dispute and the legal problem/solution associated with it...

Negotiate with Your Head, Not Your Heart

Posted on April 22, 2008
Thanks to Anne Reed over at Deliberations for forwarding this April 22 Psychology NewsWire, It Pays to Know Your Opponent: Success in Negotiations Improved by Perspective-Taking, But Limited by Empathy.It Pays refers to recent work done by Kellogg School of Management Professor Adam Galinsky, who has demonstrated (with colleagues William Maddux -- (INSEAD -- Debra Gilin -- St...

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