Articles

Periodic columns published about strategies and techniques in negotiations that occur in litigated cases.

May 2010 Issue

1. Don’t deny offers and ideas: Denial is the primary reason negotiations get stalled. It causes you to have to regroup and try again, and it builds frustration in all parties including your audience.
2. Say yes, and!: Every negotiation is a communication process built on a story. To begin with, [...]

Mediating complex employment cases is like rehearsing for a concerto. The conductor spends a substantial amount of time reviewing the score, while the musicians practice the piece both individually and collectively.  Hours and hours of practice result in one concert. Malcolm Gladwell, in his recent book “Outliers,” describes the phenomenon of hugely successful people and [...]

by Jeffrey Krivis and Brian Breiter
Picture a group of 30 trial lawyers in an almost empty room, loudly chanting, “Big Booty, Big Booty, Big Booty!”  Now imagine a pair of them trying to have a conversation without using the letter “S.”  How about two of them vying for the attention of a third by, at turns, [...]

April 2009 Issue

Understand Your Constituencies
Resolving a product liability case involves the skillful handling of numerous constituencies, all of whom have an interest in determining whether your case gets settled or tried. These constituencies include not just the client(s), but the defense lawyers, the court, the mediator, your partner(s) and anyone else who has an interest in the [...]

 Welcome to the ultimate improvisation thanks to Bill Moyers and his recent interview with Mark Johnson, a brilliant director who has “not given up on humanity or our future.” Johnson took 8 years to film street musicians around the world singing and performing famous songs such as Stand By Me.

Parties come to mediation with different objectives. Some want closure, confidentiality, or free discovery. Others were referred by the court and attend by obligation. Most, however, participate because they want to maximize their recovery dollars. If you fall into this category, read on …

One who refuses to seek the advice of others will eventually be led to a path of ruin. A mentor helps you to perceive your own weaknesses and confront them with courage. The bond between mentor and protégé enables us to stay true to our chosen path until the very end,” said the Buddhist philosopher Daisaku Ikeda …

Called “Improvisational Mediation,” Jeffrey Krivis teaches a course at Pepperdine Law School which brings together numerous disciplines, including jazz and theatre.

Knowing what people are thinking and feeling can help you build rapport and, eventually, resolve conflicts. Here are a few tips from master mediator Jeffrey Krivis to get you started: Notice body language cues. People can tell you a lot …

The myth: Defendants say they have authority to deal. Why it’s misleading: Authority is limited because real decision makers are rarely at the defense table. What to do…

What is it that separates the best from the rest? Generally speaking, the highly coveted litigators and mediators draw people to them over and over again because of that something extra they possess. In Neuro-Linguistic Programming (“NLP”) that something extra is often referred to as “the difference that makes the difference”…

DRI ERISA Report, Vol. 2, No. 2 - ERISA disputes present unique and specific challenges in large part due to the statutaory limitations imposed on scope of discovery, standard of review and plaintiff’s recovery. “It’s just not fair!” is the response most often heard from plaintiffs after they are…

Mastering basic mediation skills can take your practice to the next level…

San Francisco, CA (June 2006)—Conflict happens. It happens in all areas of business. Disputes can arise between employees, between business partners, between a company and a client. And if such issues are not settled, bad things can happen…

Although few will admit to it, there is no doubt that deception plays an active role in mediation between both sides and their communications with the mediator. This is because every negotiator wants to leave the negotiating table believing that he or she obtained the best possible result for his or her client.
Most believe that to accomplish this goal…

The X factor in mediation is the ability to influence the other side to pay more or take less. Finding the elusive X factor is the challenge for most mediators, and is often done in the face of uncertainty. This uncertainty takes many forms and can serve as a barrier if not acknowledged…

A minor tremor threatened California’s sacred mediation confidentiality laws recently that has the mediation community running for shelter. The case, Rojas v. Los Angeles County Superior Court (October 9, 2002), was brought by a group of tenants against a property owner for construction defects that allegedly caused health problems as a result of toxic mold. The importance of the case arose out of a formal discovery request by the tenants…

When congress decided to include, as gross income, settlements made by “non-physical” injury torts, it reduced the value of such settlements by up to 45 percent. This has been particularly devastating in employment cases where emotional-distress recoveries often helped…

Families are nature’s security system. Throughout the animal kingdom, we can see the family’s role in survival and well-being. Consider the penguin. In a sea of penguins, the monogamous birds will find their mates even though they are all seemingly identical. In their unforgiving climate, baby penguins stand on their parents’ webbed feet until…

Now that the court system has institutionalized the use of mediation in virtually all civil proceedings, trial lawyers are paying closer attention to their negotiation skills. While those skills involve less structured behavior than presenting a case to a jury, they nonetheless involve one common strategy…

Every day I meet with people and try to sort through their conflicts in order to achieve some meaningful consensus or agreement. Some of these sessions are more difficult than others, but a challenging part of the process comes when one party fails to show any appreciation toward the other party…

My basic nature is to be optimistic about the future. If I were one of the six thinking hats described by author Edward DeBono, I would be the yellow hat. The yellow hat is for optimism and the logical, positive view of things. The yellow hat looks for how something can be done…

Recently, I confronted the most difficult challenge of my 21 years in the practice of law. It didn’t involve courtroom theatrics or high level negotiations in a mediation room. It occurred on the stage of the Comedy Store on Sunset Boulevard…

What’s the first thing you think about when you hear the phrase “Civil Justice?” The search for the truth, of course. In every litigated case, the pressure is on all the participants to search for the truth. The Judge is empowered to assure fairness and truth. The Lawyers believe in their cases and want the truth to come out. The clients feel righteous about their positions…

There are two eternal truths about litigated cases: 1) There is a tremendous likelihood the case will be settled without trial; 2) The settlement could occur any time from the moment the case is filed until the eve of trial. That vacuum of time provides many favorable and unfavorable opportunities…

Cybersettle.com is both a trap for the unwary and a blessing for the informed. It’s a trap because it is, at its core, Cybersettle is a modified auction in which the bidders are trying to divide up a fixed pie. Whatever one side offers, the other takes away…

As we turn the century clock ahead, lawyers stand witness to a unique marriage, one in which the knot has been tied between the private non-adversarial system of mediation and the public, adversarial process known as the Civil Justice System. The Civil Justice System had the mediation community gnawing at its bedside since the door was opened to this innovative approach…

You have now paid $1000 for the privilege of participating in a mediation of a catastrophic injury case. You have your client worked up over the prospect of settling the case, and you have the right mediator to do it for you. When you sit down for the joint session, you notice that the person attending from the insurance company is not the same person you spoke to before suit was filed. In fact, the person across the table looks like he is right out of adjuster college…

Dispute Resolution (ADR) is a system of processes designed to assist parties in resolving their disputes economically and more quickly than the traditional court system. Its value lies in reducing the time, cost and uncertainty in the civil justice system. The key to achieving successful results in ADR is preparation…

If you were a conservative investor who was looking for a modest return on your dollar, would you invest in unusual penny stocks with no track record? Of course not, the risk would be too great, though the reward, if one of the equities turned out to be the next Microsoft, could be tremendous…

There have been a few breakthroughs in this century that have changed the course of our lives. Consider the automobile. It allowed us to travel from place to place faster, opening up many new opportunities for learning and growth. The telephone was another breakthrough…

Consider the latest and perhaps most notable discovery of this century, the microchip. This small object, similar to the fast-disappearing arcade game Pac-man, needs constant nourishment to survive, snacking on outdated electronics and gobbling up obsolete modes of communication. On the way, the device serves notice that we had better accept it or there will be consequences to our personal fortunes…

Most people approach mediation with the best of intentions. They are hopeful that the negotiation will achieve their ultimate goal — to settle the case — and assume that the other side is at the bargaining table for the same purpose. Because of these aspirations, it is not unusual for parties to…

Over the years I have been asked to mediate cases in various and assorted venues, including law offices, parks, hotel rooms, underground garages, elevators and so on. But a recent case was the first time I have been asked specifically to mediate electronically…

Disputes are part of our culture. They are frequently the driving force behind the decision making process, and the reason rights are often wronged. The primary mechanism that allows us to solve our disputes has been, by default, court intervention. This structure, often known as the civil justice system…

18 questions to guide your analysis…

In what appears to be the first mixed marriage of its kind, the insurance industry and trial lawyers have linked resources to encourage the use of mediation as the preferred method for resolving disputes. Known as the National Pre-Suit Mediation Program, the aim is to institutionalize…

You are a well-respected lawyer who has been referred a garden variety soft tissue injury case. The client has been treating with her own selected physician who has referred her to a physical therapist. Upon receipt of the medical bills and report, you mail everything to the insurer along with a settlement…

Multi-party litigation looks very much like strategic military maneuvers, with each party looking for ways to ambush its opponents into judicial surrender. Armed with troops of lawyers with discovery weapons and indemnity cross-complaints, the co-defendants propel endless paperwork at each other…

A personal injury example of timing and appropriate steps to take the case to mediation.

This index will help you determine which style of mediation you use.

Legal disputes have traditionally been resolved by each side taking a position, digging in and hoping that a judge or jury will award them a decision. In the final analysis, the dispute cripples the losing participant, and buries both parties in expenses that sometimes exceed the value of the entire dispute…

Bob McDowell followed a common routine each morning. He would get up early, take a two mile walk, and stop by the Canterbury Bakery for hot tea and scones. This morning was no different, except that his 27 year old daughter Meg joined him at the bakery…

After 10 hours mediating a catastrophic injury case resulting from a construction accident, the parties are tired and want to go home. The ball has been moved up the field considerably, but not to the goal line. The mediator can see daylight on the horizon if he can get a few of the insurer…

Consider the latest and perhaps most notable discovery of this century, the microchip. This small object, similar to the fast-disappearing arcade game Pac-man, needs constant nourishment to survive, snacking on outdated electronics and gobbling up obsolete modes of communication. On the way, the device serve…