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.
Having just completed Harvard Law School'sNegotiation Master Course throughThe Program on Negotiation at Harvard Law Schoolthis week, Iwas 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. Wethen analyzed the resulting data to see how individual negotiators claimedvalue 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.
