Is Baseball Arbitration a Viable Mediation Endgame?
My last two blog posts have discussed “endgame” tactics to break a looming mediation impasse. One such tactic is the “Dutch Auction”; another is commonly known as the “Savoy method”. I offer here a third tactic: combining mediation with “single-offer” or “baseball” arbitration. The latter name is derived from the use of this mechanism for salary arbitration in Major League Baseball. Let us assume that at the end of a mediation session, the parties find themselves $1 million apart, with neither party willing to make any further concessions. The parties could agree at that point to settle the lawsuit by submitting the case to an arbitrator, to whom each side would submit one figure at which they would…
Read More ›Traits of the Effective Mediation Advocate
By and large, the attorneys with whom I am privileged to mediate are good at what they do. They persuasively advocate for their client, they give their clients reasonable advice, and they achieve positive results at mediation. Each brings to the table his or her own personal style and approach. However, there are some common denominators in what I see as effective mediation advocacy. The traits of effective advocates reflect an understanding of counsel’s role and the value of the opportunities mediation presents. In our blogs, seminars, and webinars, we have spoken, among other things, of the need to prepare and to listen. What perhaps is not as commonly discussed is the value of being authentic. Someone who is forcing…
Read More ›Early Mediation Anyone?
In general, the benefits of mediating a dispute to a successful conclusion are greatest when done early. In meaningful cases, since success is only possible when the process is engaged and allowed to progress, why not mediate when costs are lowest and the benefits of resolution can be realized soonest? Thomas Jefferson may have thinking about mediation when he said,” Never put off till tomorrow what you can do today”. To learn more about the benefits of early mediation, please download our complimentary webinar on Mandatory or Early Mediation – Benefits for Individual and Commercial Clients. Richard Lord is a shareholder mediator at the firm of Upchurch, Watson, White and Max.
Read More ›CHALFONTE REDUX
I recently wrote about the Supreme Court of Florida’s opinion in Chalfonte Condominium Apartment Association v. QBE Insurance Corp., holding that Florida does not recognize a common law bad faith claim with respect to first party insurance claims, thereby answering in the negative a question certified by the Eleventh Circuit Court of Appeals. As a result of that decision, the Eleventh Circuit has reversed the federal district court order denying QBE’s motion for new trial on the $7 million-plus verdict. It remanded the case with instructions to the district court to bifurcate the contract claim from the bad faith claim. Kimberly Sands is a shareholder mediator at the firm of Upchurch, Watson, White and Max.
Read More ›Positivity
I was having a heart-to-heart recently with a friend and out of the blue she said, “You know what Sandy, at your very core you are a soul searcher.” That comment sort of blew me away as I always have viewed myself as a little stiff and serious. The more I thought about her comments, though, the more I think she is right. I read books intended to help me unlock the secrets of life, parenthood, my mediation career and so much more. I am always looking for a better way to do things. And the longer I am on this earth, the more I come to realize that satisfaction and improvement in one area of your life tends to…
Read More ›Three Common Negotiation Myths
Every attorney in a mediation setting would like to be an effective negotiator. Unfortunately, many are not particularly skilled in the art of negotiation, especially if they are burdened with one or more “old wives’ tales” about what makes a good negotiator. I say “burdened” because failing to recognize these myths inhibits one’s ability to truly become an effective mediation advocate. Here are three common myths concerning negotiation behavior: “Good Negotiators are Born, Not Made” There are few “natural’ negotiators. Effective negotiation is the product of study, preparation and practice. Most attorneys, unfortunately, have never had formalized training in negotiations, a shortfall that has just recently been addressed in law schools throughout the country. The Harvard Program On Negotiation offers…
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