A recurring strategic question in mediation is simple but critical: “How high or low should the first offer be?” When parties lack visibility into how their counterpart will react, data suggests that they often default to aggressive opening positions. They want to set the ceiling or floor and pull the counter toward it.And at first glance, that instinct isn’t irrational. Early anchoring research showed correlation with improved outcomes. But newer studies suggest that lawyers should think more holistically when advising clients.
Earlier today, I participated in the Delaware State Bar Association (DSBA)’s Best Practices in Mediation, Arbitration & Special Master Proceedings CLE. Joined by Magistrate Judge Fallon, Joseph Slights, Monté Squire, Peter Walsh, Jr., and Steve Brauerman.
At some point today, you or your clients may engage in a negotiation over videoconference. Before you do, there are some simple, statistically-backed techniques that can best posture the conversation for a successful outcome.
When asked as a mediator if remote mediations can be successful, I believe they can be and I encourage parties to consider some of these techniques to improve the "richness" of the communication. Likewise, when working with counsel to resolve discovery disputes, I opt for video because it offers a deeper connection.
When negotiating complex corporate disputes, litigators routinely think about their client’s bottom line, about how aggressive an opening offer should be, or about how their legal arguments are more persuasive than their opponent’s arguments. The goal is, of course, to maximize the client’s recovery in any negotiated agreement. But what if your client would also benefit from you taking a sincere and deep curiosity into what the opponent wants, why they feel entitled to it, and how they view the dispute?
Yesterday, the Delaware State Bar Association (DSBA) held its Best Practices in eDiscovery seminar. For corporate and commercial litigators, my co-panelists for the seminar (Vice Chancellor J. Travis Laster,xJoe Leonard, Ian McCauley, and Tara Emory) shared some wonderful insights over the course of a full day CLE. Here are a few.
Preservation: The rise of ephemeral messaging poses unique challenges. But it also reinforces the importance of a prompt litigation hold and immediate preservation.
Fans of college athletics have likely followed the developments surrounding name, image, and likeness (“NIL”) payments and the settlement recently approved by Judge Wilken in three antitrust cases (House v. NCAA, Carter v. NCAA, and Hubbard v. NCAA). In short, the Northern District of California approved a settlement allowing for damages dating back to 2016 and approved prospective payments for college athletes for their name, image, and likeness. While no one would have paid me a penny for my name, image, or likeness in my brief stint as a benchwarmer at Notre Dame, the advent of NIL and the recent settlement mark a new era for many current and future student athletes and new legal issues to consider.
Having just completed Harvard Law School's Negotiation Master Course through The Program on Negotiation at Harvard Law School this week, I was particularly struck by a lecture given by Professor Jared Curhan of the Massachusetts Institute of Technology. Over the course of a couple hours, we went through simulated negotiations. We then analyzed the resulting data to see how individual negotiators claimed value for themselves and also created value with their counterpart.
Many a litigator has been in the midst of a mediation or negotiation where one side anchors an opening offer that is subjectively (if not objectively) unreasonable. When the anchoring party later counters, it is common for that anchoring party to rely upon the extreme opening offer to justify not moving more.
In a complicated case—like those arising under Delaware law—how important are the merits in mediation? This past December, I asked my friend and mediation mentor Jeff Kichaven this question during a program we conducted for Delaware litigators called Mediating Delaware Corporate Disputes. During our discussion, Jeff and I shared our thoughts on the importance principled negotiations and principled resolutions.
Harvard’s Max Bazerman’s believes that anchoring in negotiation can compromise negotiations. In mediation, I will often hear one or both sides bemoan an aggressive opening offer. And just like that, the invaluable settlement momentum that exists by simply agreeing to sit down at the mediation table can be hindered by unreasonably high opening offers.
Earlier today, I had the opportunity to attend a negotiation program with Max Bazerman, put on by Harvard’s The Program on Negotiation at Harvard Law School. In connection with his new book, Negotiation: The Game Has Changed, Bazerman discussed some interesting topics relevant to litigators and mediation.
Earlier today, I was joined by Jeff Kichaven, one of the country’s top mediators, to share practical advice for mediating corporate disputes. As my mediation practice has grown, I have been the direct beneficiary of Jeff’s mentorship, both formally in the International Academy of Mediators and informally by phone or email whenever I have a question. So it was a special moment to have Jeff fly in from California to speak to a room of corporate and commercial litigators from over 25 Delaware firms about the sophisticated cases litigated in the corporate capital of the world.
This marks my last post discussing how litigators can apply decision making tactics to the benefit of their clients in dispute resolution. In Quit, best-selling author and decision making consultant Annie Duke describes our fixation with sunk costs and waste.
As attorneys, we make countless decisions each day often with limited information. For those who have been following along, I have thoroughly enjoyed Annie Duke's teachings on decision making and have found them invaluable in my mediation and dispute resolution practice. In this penultimate post about how litigators can apply Duke’s teachings, I want to discuss her thoughts on uncertainty from her book Thinking in Bets.
Many of us have represented clients in mediation who want to know whether the mediator agrees with their view of the case. That's entirely understandable - they want to be heard and, naturally, they believe in their case. But because this is mediation and not trial, is that conductive to the resolution process?
This is my second of five posts applying the decision making teachings of Annie Duke to litigators advising clients in mediation and other forms of dispute resolution.
In How to Decide, Duke discusses the use of decision trees to assess upsides and downsides. In another book, Quit, she discusses the use of expected value. Both are relevant to dispute resolution in litigation.
Ten years ago, I wrote an article for the Delaware Law Review identifying the ways that litigators and the courts can utilize court appointed neutrals to minimize the burdens of litigation. In that article—titled the E-Discovery Promised Land (undoubtedly the nerdiest and least cool Bruce Springsteen homage to date)—I suggested that the use of discovery magistrates and discovery facilitators could help parties and the judiciary alike respond to the volume of discovery disputes that continue to rise due to the exponential increase in electronic discovery. Now that a decade has passed, I am in the process of writing a second article revisiting the arguments from that article.
As mentioned in an earlier post, this is the first of five posts applying the teachings of decision making expert, Annie Duke, to litigators advising clients in mediation and other forms of dispute resolution. In How to Decide (https://lnkd.in/ehcYZi4i), Duke discusses “resulting” – that is, evaluating the merits of a decision based on the outcome. For example, “I won the motion, so I must have made the right argument.” Maybe.
Some of the best books that I have read over the past couple of years have been written by Annie Duke, specifically How to Decide: Simple Tools for Making Better Decisions, Thinking in Bets: Making Smarter Decisions When You Don’t Have All the Facts, and Quit: The Power of Knowing When to Walk Away. https://lnkd.in/eW8PEtme. A co-founder of the Alliance for Decision Education as well as a former professional poker player, Duke’s books are an incredible resource for litigators.
In mediation and discovery negotiations, I often witness a reluctance from parties to make the first "move" or offer. That reluctance generally seems like a default position for most parties and becomes more entrenched in highly contested negotiations. For those guiding the parties in the negotiation, the data encourages you to consider who has the better alternatives (or simply good alternatives). The party with this leverage may benefit from moving first and anchoring negotiations--and often feels empowered to move first. The party with weak alternatives needs to be aware of not only their alternatives, but whether the other side is equally hamstrung by weak alternatives or has better alternatives.
On Friday, I had the good fortune of presenting at the Rubenstein-Walsh CLE on Ethics and Professionalism for the Delaware State Bar Association (DSBA). Along with jurists from the Court of Chancery and Superior Court, our panel addressed recent issues concerning privilege under Delaware law. Here were ten key takeaways from recent Delaware decisions:
According to this article from Harvard, our ability to accurately convey and perceive emotions is approximately three times as worse when negotiating via email. Perhaps not surprisingly, in my role as a mediator and discovery facilitator, I have repeatedly found that written impasses can be bridged by face-to-face communications, even if via video conference.
