New Videos on Settlement Negotiation, Exploring Clients' Interests by @ADRvideos

One new video from the ABA Section on Dispute Resolution shows the full negotiation of a roleplay arising from a landowner dispute, in person and by telephone (20 minutes). Three new videos focus on specific situations:
• Dealing with “stonewalling” (7 min)
• A client who rejects a tentative deal (5 min)
• In a related roleplay, Settle II, lawyers exploring clients’ interests (9 min)

Awards for Outstanding ADR Scholarship

Annual awards by the International Institute for Conflict Prevention and Resolution (CPR):

Outstanding Professional Articles:

Winner: StephanieCohen & Mark Morril. “A Call to Cyberarms: The International Arbitrator’s Duty to Avoid Digital Intrusion.” 40 Fordham International Law Journal 981 (2017)

Winner: Art Hinshaw. “Regulating Mediators.” 21 Harvard Negotiation Law Review 163 (2016)

Short Article: Lynn B. Cohn. “A Model for the Use of ADR to Efficiently Distribute a Significant Settlement Fund in Mass Claims Litigation Without Sacrificing an Individualized Assessment of Claims.” 18 Cardozo Journal of Conflict Resolution 699 (2017)

Joseph T. McLaughlin Original Student Article Award Winner: George Khoukaz. “ADR That is Out of This World: A Regime for the Resolution of Outer-Space Disputes.” Manuscript submitted for publication. Journal of Dispute Resolution (2017)

James Henry Award – The James F. Henry Award, named for CPR’s founder, recognizes “outstanding achievement by individuals for distinguished, sustained contributions to the field of dispute resolution.” Candidates for the award are evaluated for “leadership, innovation and sustaining commitment to the field.”

Winner: Gerald Aksen, Arbitrator & Mediator

Y-ADR Annual Writing Award – The 2018 Y-ADR Annual Writing Award for Efficient & Effective Collaboration Between Corporate Counsel and Outside Counsel was open to lawyers ages 45 or younger or those who have had fewer than eight years of professional experience in alternative dispute resolution (ADR) practice, including, but not limited to, as counsel, client, arbitrator, mediator, tribunal secretary or law clerk. The Y-ADR award is generously funded by Assurant, Inc., GlaxoSmithKline and White & Case LLP.

Winner: AlexanderG. Leventhal, Associate, Quinn Emanuel Urquhart & Sullivan, LLP. “Corporate Counsel are from Mars, Outside Counsel Are from Venus: Building a Successful Attorney-Client Relationship through Communication”

Lack of Confidentiality in Settlement Negotiation

The Dirty Little Secret of Legal Negotiation: Confidentiality Under Federal Rule 408 and Related State Laws by Missouri Law Professor Richard C. Reuben.

The abstract:

There is a widely held belief that legal negotiations are confidential in that communications made during those discussions may not be introduced in subsequent legal proceedings. However, this first major analysis of the primary vehicle responsible for providing this protection – Federal Rule 408 and related state laws – demonstrates how this is no longer true. Rather, relatively few legal negotiations today are covered by the rules, and the federal and state courts have carved out significant exceptions that render the rule a virtual nullity. This is especially problematic modern legal negotiation emphasizes significant disclosure of sensitive information. This article explains how we got to this point, and offers a theoretical framework for regulating alternative dispute resolution processes like legal negotiation that ultimately resolves the problem by shifting the Rule 408 categorical analysis to a simple two-part test: whether the settlement discussion evidence is necessary to prevent undue hardship, and whether it is otherwise unavailable. While current Rule 408 analysis generally leads to the admission of legal negotiation evidence, the proposed analysis provides a principled and pragmatic approach for balancing the fundamental tension between the confidentiality needs of legal negotiation the information needs of public adjudication.

Settlement Negotiation

Settlement and Trial: Selected Analyses of the Bargaining Environment 
by Vanderbilt Professors Andrew F. Daughety & Jennifer F. Reinganum.

The abstract:This Handbook chapter provides a brief review of selected settlement bargaining models in some areas where new work is developing and where additional work is likely to yield yet further important results. This work has focused on what might be thought of as the environment of the settlement negotiation process, where bargaining failure generally results in trial, and our survey will use that perspective to organize the work discussed.

Private Information in Settlement Bargaining Models

Revelation and Suppression of Private Information in Settlement Bargaining Models, by Vanderbilt Professors Andrew F. Daughety & Jennifer F. Reinganum.

The abstract:
"We discuss the implications of various models of settlement negotiations for the revelation or suppression of private information held by the parties. This information may be relevant to multiple audiences, including those involved in the instant lawsuit; other potential litigants that may subsequently make use of the information in their own suits against one of the parties; and more distant observers and users of the legal process. We also examine how rules of evidence and rules of civil procedure can sometimes result in different degrees of purposeful or (arguably) unintended information suppression."

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.  

Settling Litigation

While one often hears lawyers and others say "90% of cases settle," this is not consistent with empirical data by University of Hawaii Law Professor John Barkai and Elizabeth Kent of the Hawaii State Judiciary Center for Alternative Dispute Resolution. Their article says "the commonly reported 90 percent settlement rate for all cases is a myth. The settlement rate for 'all' civil cases is about 50 percent (although almost 90 percent of tort cases settle). Trials are rare; jury trials are very rare." 

How does settlement negotiation happen in practice? "The most common type of negotiations is telephone negotiations, not face-to-face negotiation, which is the primary method of teaching negotiation in law schools. Telephone negotiations were the event with the greatest impact on settlement. Over 40 percent of cases used some form of ADR process."

Richard Posner on Sealing Settlements

Seventh Circuit Judge Richard Posner is arguably the most influential figure in the Law & Economics movement and perhaps the most influential non-Supreme-Court judge of our era.   Writing for the Seventh Circuit, Judge Posner rejected a pair of requests to keep two unrelated settlements under seal, explains Jacob Gershman of the Wall Street Journal's Law Blog here.  

Martha Neil at ABA Journal explains the lessons: (1) don't attach to a public filing the document you are asking the court to seal and (2) when the plaintiff is a minor courts may scrutinize how much of the settlement payment goes to the minor and how much goes to the minor's lawyer.  As Judge Posner writes: "An outsider to the litigation could not evaluate the dispute over the district judge’s modification of the settlement without knowing the amount of the settlement (including fees and costs) before and after the modification.  That is information important to future negotiations over attorneys’ fees in cases in which the plaintiff is a minor; and no good reason—in fact no reason at all—has been given for thinking that concealment of the information would serve some social purpose."

Judge Posner's blog, with Nobel Prize winning economist Gary Becker, is a good read.

When Is A Dispute Ripe for Mediation?

Bill Marsh at Kluwer Mediation Blog says "Professor Bill Zartman refers to two criteria as defining 'ripeness' for mediation:
1. A mutually-hurting stalemate; and
2. An impending crisis."
       That concisely expresses a lot of truth, IMHO.  As does Bill Marsh's statement: "There are many modern day equivalents to the king’s threat of “hanging”. In a litigation context, the usual equivalent is a trial – although that is often not perceived (at least in advance) as a mutual suffering in quite the same way as both Lords being hanged! It does serve to make the point, however, that the context in which settlement discussions take place is a central aspect of the judgment calls which parties make."