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The Mediator’s Role In Positional Bargaining, Part 1

In spite of an acknowledged preference for interest-based “principled” negotiation, I acknowledged in my previous post that every civil mediation eventually becomes a positional battle.  This is largely because virtually every civil litigation is resolved based upon an exchange of money and litigation combatants are rarely seeking to preserve a long-term relationship after resolution. If, in fact, negotiations in mediation become an exchange of offers …

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Is Positional Bargaining Unavoidable?

One of the primary tenets of Roger Fisher and William Ury’s book “Getting to Yes” is that negotiations should focus on interests not positions, i.e., avoid positional bargaining.  Positional bargaining takes place when each side takes a position, argues for that position, and reluctantly makes concessions from the opening position.  Fisher & Ury instead contend that wiser and more efficient agreements are reached when the …

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Are You Competitive or Cooperative?

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 …

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New AAA Rules for Fixed Time & Cost Construction Arbitration

The American Arbitration Association recently announced new streamlined rules for arbitration specifically designed for the construction industry. AAA believes that the new procedures are most appropriate in cases involving discrete issues that require limited document exchange or other discovery. The Rules definitely anticipate the parties cooperating at a level that is sometimes difficult to achieve in practice. The Rules are available on AAA’s website or …

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Getting to Yes: Focus on Interests Not Positions

By far the most often quoted tenet of “the Method” is to avoid positional bargaining and instead focus on the underlying interests of the opposite sides. Fisher & Ury illustrate their point with the story of two people in a library arguing over whether a window should be open or closed. The opposing positions are open on the one hand and closed on the other. …

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Getting to Yes: Separate the People from the Problem

The first tenet of what Fisher & Ury call “The Method” is to separate the people from the problem. Although I think I understood their point when I first read the book, over time what stuck with me was the title not the underlying principal. As an advocate and mediator dealing primarily with business disputes, it is tempting to try and simplify the negotiation by …

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Back To The Basics

I have recently been reading a number of relatively new books with claims of a revolutionary new way to approach negotiation. Without exception and without naming names, each new source has been insightful and a new perspective on the negotiation process that every one of us is involved in every day. Almost without exception, however, each new source compares itself to the classic negotiation manual …

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Different Strokes

At one mediation I heard counsel accuse the plaintiffs of lying and engaging in “litigation lottery,” hoping for a big payoff. This mediation was over before it began. At another mediation, counsel for one party repeatedly accused the other party of lying under oath. That mediation resulted in a settlement favorable to the party making the accusation. So, what’s the difference? Should the opening session …

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Decision-Making In The Face Of Uncertainty

It is the rare successful mediation that does not lead one party or both to wonder whether they could have gotten more or given up less. What makes mediated settlement conferences so interesting (and difficult) is the need to make important decisions in a confined period of time without knowing what the other side is willing to accept or give up in exchange for peace. …

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