Pryor's A Short and Happy Guide to Mediation
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Edition:
1st
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8 chapters
have results for negotiation
Chapter 1. Mediation Summarized 6 results (showing 5 best matches)
- Many mediations involve a “negotiation dance,” the back and forth negotiation initiated by a ridiculously high demand, and countered by an equally absurd low-ball offer. There is a reason for this. Regrettably, the “high demand / low offer” technique has been proven in numerous negotiation studies to be the negotiation technique most likely to lead to resolution of a dispute. Perhaps counter-intuitively for some, the technique least likely to produce an agreement is where one party “plants his flag,” taking a bottom line position from the outset and challenging the other side to eventually acquiesce to it. Kids, don’t try this at home! It’s dangerous!
- Often a mediation turns into a back and forth process until, hopefully, the matter is resolved. The parties are engaged, essentially, in “positional” or “competitive” bargaining, but as will be explained in this book, the mediator is constantly engaged in “interest based” negotiation. It is this unique perspective of the mediator that often resolves disputes that were otherwise incapable of resolution.
- “Mediation” in this book is an informal, off-the-record negotiation facilitated by a neutral third-party, the mediator. It is usually referred to as “non-binding,” which means that, if the process is unsuccessful, the result is an impasse and the parties are right where they were before. The parties have no obligation to reach an agreement, and the mediator cannot order or direct the outcome. In most jurisdictions, all communication throughout the process is confidential, and not to be used again later for any purpose.
- In the type of mediation discussed in this book the parties are typically represented by counsel and the mediator is usually compensated evenly by the parties. The process begins with an agreement regarding the choice of the mediator, and a date, place and time for the meeting. It is typical of the process in most jurisdictions that the lawyers communicate with the mediator by phone, in person, or in writing in advance of the mediation session, to prepare the mediator for the main event. It is to everyone’s advantage that the mediator have a chance to anticipate the nature of the dispute, to consider what key factual and legal issues might be involved, and in general to have a sense of the dynamics of the dispute (personalities, prior settlement negotiations, etc.).
- In the classic model of the process, the mediator brings all participants together at the outset for a “joint session”. Joint sessions will be part of the discussion elsewhere in this book. The mediator makes a few comments, goes over the ground rules, answers any questions that the participants have, and attempts to create an atmosphere conducive to negotiation and compromise. Next, each side, usually through the lawyer, has an opportunity while everyone is still assembled to summarize their position and perspectives on the issues in dispute. These presentations are
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Chapter 4. Preparing for the Mediation 12 results (showing 5 best matches)
- It is often the case that previous settlement negotiations are best discussed in a call, and not in writing. A negotiation dance, like a budding romance, can begin with very subtle overtures. A twenty or thirty minute conversation, unlike a written submission, is not a communication of just what you think the mediator
- While some will offer that it is what they imagined, or what their lawyer described for them, others will suggest that they never imagined it would be so tedious, or that there would be so many “back-and-forth” moves in the negotiation. But far and away the most common response is that the participant did not anticipate being separated from her adversary for most of the day; what she anticipated was across-the-table, face-to-face, direct negotiation.
- It’s easy to understand why the client may have pictured being seated across the table from her adversary throughout the process. Popular images on the nightly news of peace treaty negotiations or labor union/management negotiations often include the photo op of those participants across the table from the other. What the public doesn’t see in these news accounts is that, after the camera lights were turned off, and after some brief dialogue, the negotiators in all likelihood retreated to separate conference rooms.
- Want to suck the energy out of a negotiation? See what happens at a critical moment in the process when it completely shuts down for around two hours because someone is out to lunch, walking their dog, in an important meeting, forgot to turn the ringer to their cell phone on, etc.
- Preparing for the mediation means more, however, than just understanding the steps in the process. It also means having a plan, a negotiation strategy, based on your goals and an objective assessment of realistic scenarios and alternatives to settlement. If you are going to start the bidding by making the first settlement proposal at the mediation, and you think your “bottom line” is that you want to receive $100,000, should your opening demand be $500,000, $1,000,000, or $2,000,000? Should it be $150,000? Should you try to stage the negotiation so that your opponent makes the opening proposal? If you make a demand of $2,000,000.00, is the other side going to counter with an offer of $5,000, $50,000, or just get up and leave?
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Chapter 5. The Process: Do’s, Don’ts and Choices 19 results (showing 5 best matches)
- The “back and forth” detailed above, a negotiation that had a happy ending, is a classic example of the negotiation dance. Although the method worked, it is also a classic example of positional or competitive bargaining, which often is risky, confrontational and ultimately unsuccessful. It is because the mediator is always exploring the parties’ interests, and not just their positions, that the mediator’s role is often crucial to the outcome.
- First, one of the lawyers may have asked me to in their premediation submission, because they (a) can’t remember what the communication has been; (b) they have replaced prior counsel for their client in the matter, and are honestly unsure of what negotiations have previously transpired, if any; or (c) they are curious as to their opposing counsel’s recollection of prior communications, and also curious if a prior offer or demand will be described as the day’s starting point for negotiation, or whether there is to be a new starting point.
- At $800 thousand vs. $50 thousand, the Defendant proposed a “bracket.” A bracket is any version of “I’ll do A, if you’ll do B”. Brackets are often very effective at closing large gaps. If you are in a negotiation and the difference between the parties is $60 thousand vs. $50,000, you don’t need a bracket. The negotiation is already “bracketed.” But when the parties in our hypothetical were at $800 thousand vs. $50,000, a bracket made sense.
- Met with your counsel (or client) and reviewed the strengths and weaknesses of your position, and come up with a realistic negotiation strategy
- Sometimes I will deliberately ask counsel, while everyone is still together, to summarize the current status of negotiations, the status, in other words, before everyone arrived for the mediation. This question will often be posed even if I think I know the answer! There are multiple reasons for doing so.
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Chapter 3. Choosing a Mediator 4 results
- The negotiation of a structured settlement ordinarily will take place on the back end of a negotiation, not with the very first offer made. To illustrate, if the negotiation of a claim involving the injury to a child has come down to a gap of $750,000 vs. $600,000, in order to close the gap an insurance company may begin illustrating how the funds could be structured. Perhaps $250,000 will be shown to be cash up front, to deal with medical bills, immediate medical needs of the child, and attorney’s fees. The balance of $350,000 is plugged into a computer program, and an “illustration” is printed out, illustrating how in 30 years the $350,000 will actually have paid out an exponentially greater
- Fifth, the structure was being advanced at the very outset of the negotiation, not as a bridge at the end to close the deal.
- Finally, given the fragile emotional state of John’s parents and where we were in the negotiation, I thought that what the insurers wanted to do was the demonstration of almost cruel insensitivity to the circumstances.
- ...sometimes create tension in a negotiation. It is an issue that sometimes requires a diplomatic touch. I have had plaintiff’s lawyers say, “Will, tell the insurance company down the hall that if they send you in here one more time with an illustration we are leaving.” Why is offense taken? Because to some plaintiff’s counsel, the use of the illustration implies a message that the lawyer is either too dumb and unsophisticated to appreciate the benefits of a structure (the reality is that most plaintiff’s lawyers in substantial cases have had their own annuity brokers working on the case several days prior to the mediation), or worse, the lawyer is unethical and hasn’t explained to the client that money properly invested can have long-term benefits (insurers sometimes assume that all plaintiffs lawyers only want all the money up front, and so they don’t counsel their client’s appropriately). The tension is greatest when the insurer instructs the mediator, “when you take this...
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Chapter 6. What Do You Mean “It Didn’t Work”? Following Through 11 results (showing 5 best matches)
- Other mediators may have their own personalized techniques for creating movement in a stalled negotiation. I know mediators who have the capability of baking cookies in their office suite, and I am told that the scent of the cookies in the oven, by itself, can cause a negotiation to loosen up. Popcorn? I’ve heard of that one, too. Any experienced mediator will tell you that how lunch is catered, and what drinks and snacks are made available to the participants, can make a great deal of difference to a successful outcome.
- The guarantee is what allows the technique to work in most instances. It is simply stunning to learn how common it is for a party to a negotiation to be willing to make one more adjustment in his negotiation position on the condition that his adversary never learns of the acceptance unless the case settles. The mediator’s proposal is a face-saving technique that allows many disputes that impassed at the end of the mediation session to be settled.
- When all else fails, desperate times call for desperate measures. I have participated in coin flips to see who got the “win” in an impasse over $5,000. I have negotiated the rules for a one-on-one basketball game (no dunking!) to close out a similar negotiation between two men, both of whom were former college basketball players, disputing over an employment agreement. And I have facilitated a negotiation over a substantial charitable gift to a hospital, which was the only consideration for a settlement that had absolutely nothing to do with healthcare or the hospital.
- not, not every negotiation dance has a happy ending! The process can, and often will, result in an impasse, when no more movement by either of the negotiators will occur.
- In a previous chapter we learned about the value of preparing a Mediated Settlement Agreement (“MSA”). But additional value from having an MSA in the works as a negotiation dance winds down is the ability to use it, like coat removal, as a visual cue.
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Chapter 2. Should You Mediate, and When? 5 results
- The Good Faith / Bad Faith Thing: Will Your Opponent Engage In An Honest Negotiation?
- Occasionally a business dispute has the potential for a creative solution, perhaps one involving future business consideration. A facilitated negotiation may be the best process available for salvaging a win-win solution.
- The negotiations lasted all morning, and into the afternoon. Lisa’s grossly excessive demands continued to draw ridiculous low-ball offers from the school and its insurer.
- , to gain leverage in the negotiation.
- ...problem. At the end of the eight-hour mediation, after all of the attendees have participated in information gathering and reevaluation, and have shared in the tedium, frustration and boredom of a very long and exhausting negotiation process, the mediator suggests that the claim be settled for $60,000. All participants, including the claim representative in attendance, agree that this is a reasonable suggestion. However, the claim representative must call his or her supervisor for the additional authority necessary to resolve the claim. The supervisor, whose focus and energies have been directed throughout the eight-hour mediation on other matters, declines to approve the additional authority. Or worse, it’s after 5:00 pm and the supervisor is no longer answering the phone! The mediator, reluctantly, declares an impasse. Regrettably, the participants leave the mediation certain that, had the supervisor been physically present, the matter would have been compromised and settled...
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- Parties to a negotiation often have to walk up, or down, a
- It is easy to understand that everyone is busy, and that sometimes in the last minute crush of events the chance to send the mediator an email, briefly explaining what the case is about, the status of settlement negotiations, etc., just slips away. Besides, it is tempting if the lawyer and mediator are familiar with each other to think, “I’ll just get to the mediation a few minutes early and visit with the mediator privately.” Maybe this works out, but maybe it doesn’t. Why do intelligent people, all of whom are desirous of resolving a dispute, go to the time, trouble and expense of scheduling a mediation, preferably with an experienced mediator, and then not allow the mediator an opportunity to use that experience to tailor the process to benefit them? It is not good advocacy on the part of counsel. Whether you are counsel or client, don’t let this be you!
- been sent more than eighteen months before, so for negotiation purposes we were pretty much working with a clean slate. If ever there was a case that appeared to be poised for resolution, this was it!
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- Publication Date: N/A
- ISBN: 9780314289902
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- Series: Short & Happy Guides
- Type: Overviews
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Description:
A Short & Happy Guide to Mediation is for lawyers who want better results from mediation, clients curious about an upcoming mediation, mediators who want to become more effective, and students who want to explore dispute resolution as a career. What disputes should be mediated? Who gets to be the mediator and how do you choose the right one? How can preparation for a mediation lead to a more successful result? What are some things about the practice of mediation these days that we can improve? A Short & Happy Guide to Mediation addresses these and many other intriguing questions.
Learn more about this series at ShortandHappyGuides.com.