Contempt Sanctions due to Settlement Conference

"Settlement conference" means different things in different places but the usual meaning is something like mediation conducted by the judge presiding over the case.  Following judges' orders related to settlement conferences, like following other court orders, is obviously important.  Here is an example of contempt sanctions imposed on a party that failed to comply.

As Mary Novak at Just Court ADR explains: Judge Janet Berry did not believe the insurers had complied in good faith with her rules on authority to settle, she found the company in contempt and sanctioned them $50,000.

Lawyers as (Good and Bad) Deal Killers

Karrass at Negotiation Space writes:

Lawyers are great deal killers. If you tried to bargain away every danger the lawyers foresaw, the negotiation would never end. ...

Lawyers, nevertheless, had an important function in reviewing the final contract.  They found areas in which our company vulnerability was too high for comfort. They left us to decide whether we could live with the potential danger or if we needed greater protection. Our decision was made on the basis of the other side’s track record as a reliable seller and their willingness to relieve our vulnerability by granting necessary warranties.

The trouble with these deal-killers is that they are far removed from the real marketplace, while the salesperson is on the front line with buyers every day.

Mediation in New Zealand

 
Victoria University Law Professor Grant Hamilton Morris
writes that "the modern mediation movement is primarily a result of state-led reform in a variety of legal areas. Much of this reform has been influenced by overseas models emphasising New Zealand’s role as a 'fast-follower' of alternative dispute resolution trends rather than an initiator. The rise of mediation in New Zealand has been ad hoc and pragmatic with a distinct lack of systematic development. This pragmatic change was a response to pressures such as the cost and delay involved in litigation, and major social trends challenging traditional ways, including traditional approaches to resolving disputes. Mediation continues to play a vital role in the New Zealand legal system but the exponential growth of the 1980s and 1990s has slowed as mediation begins to clearly locate and confirm its 'territory' in the New Zealand legal system."

Court Connected ADR in Illinois and Maryland

Summarized and linked by Jennifer Shack

Great Resource for ADR Teachers

Syllabi of dispute resolution courses, maintained by Missouri Law Professor John Lande.

Good Tips for Negotiators, Especially Lawyers

When leading negotiation scholars are concise, they come up with nuggets of wisdom.  These are in the form of recipes for cooking up a deal and I particularly like:

“Having those who matter present”. Sanda Kaufman

 

“Knowledge of your counterpart, available remedies, relevant law and facts”. Nancy Welsh

“the heat is ultimately helpful, and you’re not the only one feeling it.” Noam Ebner 

“Add knowledge in increments (from listening to your counterparty and also doing

your own background research) till the remaining ignorance tastes acceptable.
Add in a small amount of doubt with each new proposal by the other party;
balance it with 1 part research and 1 part creative counter-offer.” Chris Honeyman

and Roy Lewicki’s entire entry:

· Figure out what you want
· Understand what would and could not be a mutually acceptable agreement
· Get to know and understand the other party
· Frame an opening statement
· Ask the other to reciprocate and listen to them carefully
· Ask each other lots of questions to assure understanding
· Work toward a common understanding
· Treat the other with respect and dignity

 

 

 

Getting to Yes Sooner, Cheaper, and Better

is the title of an article by Missouri Law Professor John Lande, who interviewed well respected litigators about how they prepare for trial and for negotiation.  

"They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, making strategic decisions about timing, and enlisting mediators and courts when needed. The lawyers overwhelmingly suggested starting negotiation at the earliest appropriate time. Reaching agreement sooner generally produces the benefit of reduced litigation costs as well as reduced time that parties invest in litigation. Lawyers produce better agreements when they focus on both sides’ interests because this enables them to create value, even in supposedly zero-sum negotiations." 

I like the vocabulary Professor John Lande uses: focus on both sides' interests, create value, zero-sum. It really captures well what matters in negotiation.  

BATNA Difference?: Negotiating in Good Faith in Civil Law Countries

Negotiating in Good Faith: Walking Away to BATNA Under the Civil Law,

by Professor Gregory Marsden:

This paper examines the concept of BATNA and whether we may validly advise negotiators outside the common law world to cease negotiating if the expected outcome does not exceed their previously-determined BATNA. Such advice is commonplace in negotiation methods informed by the common law tradition. However, we submit that the same advice may lead negotiators astray under the civil law, which provides that a party may be held liable for breaking off a negotiation without just cause.

To resolve this issue, we propose that international negotiators focus on BATNA as just one component of the broader concept of Reserve Value, which must also take into account potential pre-contractual liability.

Negotiating with Difficult People

Negotiating with Difficult People, 

a new article by John Harington Wade, Law Professor Emeritus, Bond University.

He defines difficult people as behaving in ways detrimental to his/her own best interests and to the interests of his/her community, for example:

- sends long insulting emails

- uses unnecessarily inflammatory language 

- arrives at meetings unprepared

- tries to ambush people with new information

- is totally focused on self-interest (“I need…..”), and is apparently

unaware of needs or goals of others

- lies and exaggerates

- cannot identify what is important or a priority in their lives

- spends more time and money on the dispute than it is apparently worth

:

1 

Confidentiality in Mediation

"Protecting Confidential Information in Commercial Mediations" 

is a new article by Paul Lurie and Sharon Press.

Despite the Uniform Mediation Act, "there is no uniformity in the United States as to how or when information disclosed in mediation may be used or protected from use in subsequent legal proceedings. This confusion about the protection of information may discourage parties in commercial disputes from using mediation. For those parties who decide to enter mediation, the Model Standards of Conduct for Mediators make the mediator responsible for promoting understanding “of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.”"

This article includes a suggested mediation confidentiality clause that can be used in agreements to mediate commercial disputes.

Advice for Women Negotiating for Higher Pay

Today's New York Times has an article entitled, "Moving Past Gender Barriers to Negotiate a Raise".   

A few nuggets of interest to negotiators:

"Women tend to negotiate less for themselves than men, when there aren’t clear standards on what they should be asking for, studies found. In fact, women worked longer and made fewer errors but paid themselves less than men did for similar tasks, according to another study. But that effect went away when women were given data on what others paid themselves."

"When negotiating for higher pay, research has found that it is not enough for women to act in a way that conforms to stereotypes. Acting feminine enough — that is, showing they care about maintaining good relationships as well as the communal good over themselves, for instance — helps women in the likability department. And that’s important.  But that doesn’t necessarily make the person in the position of power any more likely to grant a woman’s request. Women also need to legitimize their requests, or find ways to make them seem more appropriate"

Grow the Pie by Timing Payments

Good negotiators find ways to increase value by making deals that give each side its high priorities while making concessions on that party's low priorities. 

I like to call this "positive-sum" negotiating, while some others like to call it "integrative bargaining" or "problem-solving negotiation." 

Whatever one calls it, a common way to do it is by considering different ways to time payments of money.   Karass gives short examples.

Negotiation Theory and Empirical Data

New article by Missouri Law Professor John Lande on Negotiation Theory, with empirical data

A Framework for Advancing Negotiation Theory: Implications from a Study of How Lawyers Reach Agreement in Pretrial Litigation

Lande argues that "The prevailing negotiation theory tries to fit lots of square pegs into just two round holes - adversarial or cooperative bargaining."

Caution on Regulation of Mediation

Where Mediation is Concerned, Sometimes 'There Ought Not to Be a Law'! is the title of a short and wise caution by several leading mediation scholars: Sarah Rudolph Cole, Craig McEwen, Nancy Rogers, James Coben, and Peter Thompson.

ADR in Britain

Courts in the UK seem to be facing most of the same ADR issues as courts here in the US.  As Jan O'Neill of Herbert Smith Freehills describes, there are studies and observations and recommendation and maybe some incremental reforms encouraging parties and judges to consider ADR