You are viewing all entries authored by Max Factor III, Esq..
Just six weeks before trial and an hour before mediation is to begin, Lucy Litigant meets with Alfred, her attorney, at Checkers Breakfast Grill to discuss negotiation and settlement strategies for that day’s mediation session regarding a claim of approximately $7.0 million. At that private attorney client breakfast meeting, Lucy contends that Alfred said he would be willing to make a side agreement with her that as part of any mediation settlement, Lucy would be paid from the attorneys’ fees portion the sum of at least $200,000 as a paralegal for her work on her own case.
Read more »
Tom, Esq. was tired…. It’d been a long day as the mediation participants reached agreement at 8:30 pm. He had the foresight to bring a proposed settlement agreement on a thumb drive, so that Tom and Jerry, Esq., plaintiff’s counsel, worked collegially in writing up “The Deal.”
Read more »
One mechanism by which people decide whether to trust strangers is the interplay between the stranger’s initial appearance and the observer’s intuitive biases. So, when entering a negotiation with opposing counsel who you have never met or meeting an opposing litigant for the first time at mediation, be aware that you may initially make a social judgment about the other person’s trustworthiness, which is based on your past biases. The result can be unnecessary misunderstandings resulting in delays or missed opportunities.
Read more »
It’s a recession. Your income is down. You are thinking of borrowing from your pension funds to pay for your child’s college tuition, but the value of the equity in your pension is well below your retirement goal.
Just then, a policeman pulls up slowly along side your car and looks at you. Although you have done nothing wrong, you are inexplicably very nervous about getting a moving violation and having to pay more for car insurance. When he passes you by, you silently say to yourself, “He must already have his quota or he would have found a reason to give me a ticket.”
You arrive at the dentist for your annual teeth cleaning. The dental hygienist tells you that it would be wise to schedule a second cleaning in four months because your plaque build up is substantial. You immediately feel she is simply trying to generate more income from you; and you let her know she is not going to double her income off cleaning your teeth - “Try that line on someone else’s teeth.”
When you get home you tell your spouse about your stressful encounters with the policeman who slowed down and stared at you and the dental hygienist who wanted to make extra money by seeing you every four months instead of once a year.
It doesn’t occur to you to mention you were feeling very anxious about how you’re going to fund your son’s education. Instead, you got “relief” by splitting off that anxiety about finances from yourself and projecting it into the minds of the policeman and the dental hygienist - each of whom were probably just doing their job, not looking for extra money.
Read more »
It's 6:55 p.m. The air conditioning is going off in five minutes. The hardball vendor stands up and announces to the supplier, "I am fed up with your game playing and macho negotiation tactics.
"If you agree to accept $60,000 in settlement of your $100,000 in inflated past due bills, my company will recommence doing business with you at the former sales levels, provided we get a guarantee of no more price increases for the next 12 months. I am taking 10 minutes to call my wife and rearrange dinner plans at the Water Grill at 8 p.m."
The vendor stands up and forcefully announces, "You have 10 minutes to decide."
Read more »
It was seven hours into a heated mediation between two businessmen, each of whom were prepared to engage in a self-destructive dissolution of their construction company. "I just don't get it!" the majority partner said. "The federal tax returns and audited financials clearly show the proposed buyout of your 35 percent share is more than equitable. And, after seven hours of negotiation, we are willing to pay a premium for your minority interest."
"What will make this deal work?" I asked.
The minority partner responded, "I will accept a cash settlement, but it must be based on the set of books he uses for himself and kept in his private safe, and not the set of books he uses to show his wife or his accountant."
Read more »
Understanding the Effects of Anger in the Negotiation Process
The car salesman has just returned and counsels you: " I am so sorry. My sales manager says no lower than $24,550, out the door, taxes, license and all. Period."
Your research has told you that the car is usually sold for between $23,500 and $24,000, out the door. This stuff with the sales manager’s approval being needed is, you believe, hogwash. You are furious!
Read more »
Lessons from the Harvard Medical School Keynote Address, June 2005
In seventh grade at El Rodeo Elementary School, I completed an English essay by writing: “Why do I want to be an attorney? I want to help other people who are less able to represent themselves.” The date was December 1956.
Mrs. Ritter, my English teacher, gave me an “A minus” and neatly wrote at the top of my essay, “Good Paper. I hope you are not disappointed with being a lawyer.” At the time, I did not understand what she meant, but I was pleased with the grade.
Read more »
The mediation landscape has changed for single-family residential real estate disputes. In the recently decided case of Frei v Davey (Dec. 17, 2004) 2004 DJDAR 15051, a prevailing party was denied recovery of any of the more than $120,000 incurred to defeat a plaintiff’s action for specific performance and to cause the Buyer’s lis pendens to be removed. The prospective defendant seller and plaintiff buyer had entered into a standard CAR Residential Real Estate contract for the sale of the defendant’s home.
Read more »
How to Use Mediation To Restore Business Judgment To Business Disputes
Business executives are supposed to be creatures of logic, carefully weighing costs and benefits. Yet some mediations fail even when there are several sensible alternatives, any of which would offer the disputants as good or a better a result than each of them would expect from other likely outcomes of the dispute.
Read more »
You are representing a client at mediation. You know the general rule: what happens in a mediation is confidential. However, during the course of the mediation, perhaps you observe that the mediator favors the other side. Or a party makes certain statements at the mediation which lead you to realize that the judge in your case has a material undisclosed financial interest. Perhaps a party appears medicated, unable to appreciate the meaning of the settlement reached at the mediation. Can anything be done? In many cases, the answer is yes.
Read more »
In California, the State Legislature and the Supreme Court take the notion of Mediation Confidentiality quite literally. Rojas v. Superior Court (Coffin) (2004) XX Cal. 4th XX.
Unfortunately, shrewd legal counsel may turn the “public policy” goal of that confidentiality shield on its head. Their technique: prepare accurate evidence which is adverse to their client’s position and introduce it as a document at Mediation, with the assurance that this “truthful writing” will be cloaked in the Invisibility Shield of Mediation Confidentiality! The truth seeking which is supposed to be an integral part of the adversary process instead morphs into a tool for hiding the truth.
Read more »
One in a series of articles exploring the ethical dilemmas of mediation participants.
Supreme Court Justice Scalia has been requested by the Sierra Club, a litigant with an appeal pending involving Vice President Cheney and the White House task force he headed to develop the Bush Administration’s national energy policy, to step down from consideration of this case.
Read more »
Going to see Michael Moore's controversial documentary "Fahrenheit 9/11" won't earn you continuing education credits, but there's plenty that a litigator can learn from watching the movie.
There are two very different techniques Moore uses repeatedly. One is effective persuasion, clearly intended to persuade the uncommitted. Moore also uses shock, satire and derision to drive his points home - at the risk of alienating anyone who does not share his beliefs.
Read more »
