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.
As mentioned in an earlier post, this is the first of five posts applyingthe teachings of decision making expert, AnnieDuke, to litigators advising clients in mediation and otherforms of dispute resolution. In How to Decide, Dukediscusses “resulting” – that is, evaluating the merits of a decision based onthe outcome. For example, “I won the motion, so I must have made the rightargument.” Maybe.
Some of the best books that I have read over the past couple of years havebeen written by Annie Duke, specifically How to Decide: Simple Tools for Making Better Decisions, Thinkingin Bets: Making Smarter Decisions When You Don’t Have All the Facts, and Quit: The Power of Knowing When to Walk Away. A co-founder of the Alliance for DecisionEducation 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.
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.
