Bracketology

In virtually every mediation that bogs down, I am asked about the use of brackets. Brackets have their place but to state the obvious: the use of brackets will not change parties’ calculation of their BATNA (Best Alternative to Negotiated Agreement), will not affect their underlying interests, or their perception of the right or wrong of a settlement. These are the real drivers toward settlement …

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The Power Of Apology

In my experience, apologies in business or civil litigation mediation are the exception not the rule.  There may be good reasons for this but you should never underestimate the potential of a good apology for reaching a resolution.   Amongst the recent revelations coming from #MeToo the story of Dan Harmon and Megan Ganz did not make a lot of headlines.  I bring it up …

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Power In Negotiation

Benjamin Franklin is credited with saying that “Necessity never made a good bargain!“ In his wonderful book, Practical Negotiating, Tom Gosselin contends that “In negotiating, power is a function of alternatives.”   Gosselin is right, of course, and hopefully a discussion of alternatives brings to mind Ury & Fisher’s BATNA (Best Alternative to  a Negotiated Agreement) concept.  Gosselin goes further though and breaks down the …

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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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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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