Ranges and Brackets — Impasse Busting Techniques for Your Consideration

The negotiation has ground to a halt.  The parties have been at it all day and they are frustrated that there remains a big distance between them.  The negotiations have proceeded in a traditional incremental way.  Plaintiff’s last number is over $1,000,000 and the defendant is stuck at $100,000.   At the rate things are going, it would take days to bring them into a zone of agreement.  Again, this is an opportunity for the mediator to strut her stuff.  Possible techniques to break the logjam include a consideration of ranges.  For example, the mediator might suggest the following:  Would you, defendant, settle the case in the low six figures meaning between $100,000 and $300,000 if the plaintiff would accept a number in the high 6 figures, $700,000 to $900,000?

If the parties do not like the mediator’s numbers, then the discussion turns to what numbers they would consider.  This is an invaluable discussion from the mediator’s perspective. It gives the mediator information about where the parties are willing to settle and provides a means to determine whether and at what ultimate figure the case can settle.  If the parties agree to the suggested range, the mediation has taken a big step forward toward settlement and compromise can ultimately be reached.

Impasse — A Mediator’s Opportunity

 The mediation has gone on for hours.   The parties have negotiated slowly and methodically, but remain far apart.  The negotiations are not in the “zone of agreement,” the mediator’s term for closing in on a settlement amount.  The negotiations have reached an impasse. Governing Impasse occurs to one degree or another in nearly every mediation. …

Bruce A. Friedman Appointed as Arbitrator to IFTA

Bruce A. Friedman has been appointed as an arbitrator on the Independent Film & Television Alliance (“IFTA”) Arbitration Panel.  IFTA was created by the American Film Marketing Association, the trade association of producers and distributors of independent film and television programs as its arbitration system to resolve entertainment industry disputes relating to production, finance, and distribution of independent films and television programs.
The members of the IFTA panel are distinguished attorneys with substantial experience in litigation and complex entertainment related transactions. Bruce, who was appointed to the Los Angeles Panel, is looking forward to participating alongside his esteemed colleagues. He will contribute his knowledge and vast litigation experience in connection with the financing, distribution, insurance and bonding of independent films.

Winning At Mediation

A famous trial lawyer welcomed his junior partner back from a hard fought trial.  The lawyer congratulated his mentee on her win at trial.  The junior partner responded that, “you must be mistaken, I lost at trial.  The jury returned a verdict against our client.”  The senior partner responded, “But wasn’t the verdict less than the plaintiff’s last settlement demand?”  “Yes,” replied the junior partner.  “Then you won!” said the senior partner, “It is all about how you define win!”

Bruce A. Friedman Named as ‘Rising Star’ Among the ‘Top 50 Neutrals in California’ by the Daily Journal

Congratulations to Bruce A. Friedman for being named as a Rising Star among the ‘Top 50 Neutrals in California’ for 2013 by the Daily Journal. The Daily Journal compiles this prestigious list annually, researching which California neutrals handled the most high stakes and most influential cases, and which neutrals were most in demand. Having transitioned from litigation to…

On the Radio with Bruce Friedman

Bruce Friedman recently appeared on the Doug Noll Radio Program to discuss the sensible means of resolving legal disputes. As a former litigator turned mediator, Bruce’s experience in the alternative dispute resolution arena is varied and extensive. If you missed Bruce’s interview, click here. all payday loans online To discuss your mediation and/or arbitration needs,…

What It Takes to Settle

I am a true believer in the evaluative approach to mediation.  I not only enjoy engaging counsel and the parties in a discussion of the issues in a case, but I know that this discussion will eventually lead the parties down the path to settlement of the case.  When the actual negotiation begins, I am a proponent of a principled negotiation in which the settlement offers and counter offers are tied to the evaluation of the issues of the case and the likelihood of success or failure at trial.  But the evaluative method only goes so far.  It is an effective way to narrow the gap between the parties, but it may not be enough to close the gap.  I see this routinely in cases where one party has a much stronger case than the other and in light of the strength of the case and based on the evaluative approach, that party’s last and best offer is close, but not enough to settle the case.  The reason lies in the mediation process and the psychological effect on the party with the weaker case of having the mediator consistently holding up the mirror to the case and working that party up or down during the course of the mediation.  Ultimately, I hear the refrain, “they just don’t respect us and our case.”  In spite of my efforts to persuade counsel and party that it is not personal.  It is personal for them.

After the evaluative method has been exhausted, and the parties have narrowed the gap between them, the question on the table is what does it take to settle the case.  Should the party with the stronger case, make a final effort to bridge the gap?  Is there a settlement premium that should be paid or accepted?

I believe that there is a settlement premium that comes into play and should be seriously considered for a number of very important reasons.

1.  The evaluation approach is not science.  Reasonable minds can differ.  There is the old adage that even the best case has no better than 80/20 odds attached to it and no one could quibble with the odds dropping to 70/30 or even 60/40;

Online Mediation — Press Delete

As you might be aware, there is a LinkedIn Group dedicated to Online Dispute Resolution, featuring announcements of conferences on online mediation and blogs on new products that will revolutionize technology assisted dispute resolution. This group is just the latest example of a renewed interest in online or e-mediation as a means to resolve disputes. …

Thoughts On The Initial Demand

In an informal survey of mediators, I have found that our collective experience is universal –the initial demand is extraordinarily high, bears no relationship whatsoever to the verdict potential of the case and is usually counterproductive to the mediation process.  Since the initial demand is usually made only after lengthy discussion of the strengths and weaknesses of the case and the range of recoverable damages, it is even more perplexing that it bears no relationship to the recoverable damages in the case.