Would it have been better to settle rather than to proceed to trial?
In Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations, Randall L. Kiser, Martin A. Asher, and Blakely B. McShane studied more than 2,000 contested civil cases in which parties rejected a settlement position and proceeded to trial or arbitration.
You get punched in the mouth—or so said former heavyweight champion Mike Tyson.
Parties often arrive at mediation with a stated willingness to negotiate in good faith. Then one side makes an opening demand or offer that the receiving party views as the proverbial punch in the mouth—something entirely at odds with what it considers a reasonable, good-faith position.
In Delaware Claims Processing Facility, LLC v. DBMP, LLC, the Delaware Supreme Court addressed the following question from the Delaware Court of Chancery: should the trial court “be in the business of potentially issuing relief to preserve documents for use in other litigation . . . [?]”
Recently, I stopped into the LEGO Store in New York City at the behest of my soon-to-be kindergartener. It was a brief visit before heading to my hotel to finish preparations for a mediation the following day.
When he first started building with LEGO bricks, he would tear open the numbered bags, in eager pursuit of the coolest pieces that he had spotted on the packaging. Pieces would get lost. The builds took longer than they should. We both grew tired and frustrated. And compared to the goal on the box, the final product often missed the mark.
In 𝘐𝘯 𝘳𝘦 𝘞𝘰𝘳𝘭𝘥 𝘞𝘳𝘦𝘴𝘵𝘭𝘪𝘯𝘨 𝘌𝘯𝘵𝘦𝘳𝘵𝘢𝘪𝘯𝘮𝘦𝘯𝘵, 𝘐𝘯𝘤., a class of stockholders alleged breaches of fiduciary duties in connection with a merger. Before the matter was settled, the Delaware Court of Chancery addressed spoliation allegations in connection with an ephemeral messaging application, Signal.
Not long after the Treaty of Paris had been signed, Benjamin Franklin reflected in a letter to England’s Sir Joseph Banks, "𝐓𝐡𝐞𝐫𝐞 𝐧𝐞𝐯𝐞𝐫 𝐰𝐚𝐬 𝐚 𝐠𝐨𝐨𝐝 𝐖𝐚𝐫, 𝐨𝐫 𝐚 𝐛𝐚𝐝 𝐏𝐞𝐚𝐜𝐞."
Of course, without that war, there would not have been independence. Certainly Franklin was not discounting the achievements of the brave patriots in the colonies?
