You’re close to a deal, but concerns linger. Some of the contract seems less than precise. What in the world does “reasonable best efforts” mean, for example, or “good faith”? Negotiators in this commonplace situation face a choice: push for more precision now or sign the deal and hope the ambiguities won’t cause trouble down the road.
litigation
A formalized legal process to resolve a dispute through legal action in the form of a lawsuit. It often entails a contractual issue. It is the act of either bringing or challenging a lawsuit. (from www.negotiations.com/definition)
The following items are tagged litigation.
Does Lawsuit Mediation Really Work?
No one likes to go to court. Not only is it expensive and time-consuming, it often leads to frustrating results and damaged relationships. So is court-sponsored mediation a better route?
The answer is “sometimes,” according to a comprehensive study of court-affiliated mediation programs by Roselle L. Wissler of Arizona State University’s College of Law in Tempe. Settlement rates in these programs varied widely, ranging from 27% to 63%. In some programs, the percentage of settlements was higher than in nonmediated cases; in other programs, there was no difference. Several other studies have indicated higher compliance with mediated agreements than with court orders (though they found no significant difference between mediated agreements and privately negotiated settlements).
Negotiator toolbox: Capitalize on differences
The problem: You and your negotiating counterpart express differing opinions about the future success, performance, or timeliness of an item or service. A homeowner might be skeptical of a contractor’s promise to complete an extensive remodeling project within six months, for instance. Differing forecasts can breed suspicion and stand in the way of agreement.
The tool:
New York courts offer judge directed negotiations for medical malpractice lawsuits
Settlement negotiations for medical malpractice lawsuits often occur late in the litigation process, when adversarial positions have become well-entrenched, and parties have little or no inclination to compromise. In an effort to improve the success rate of these settlement negotiations, some courts in New York State are now offering “judge-directed negotiations” for parties involved
Involving mediators in settlement talks
Adapted from “The Mediator as Team Adviser,” by Stephen B. Goldberg (professor, Northwestern University), first published in the Negotiation newsletter, May 2006.
When faced with a trial, a corporation sometimes engages one law firm to represent it in court and a second law firm to explore settlement possibilities. According to conventional wisdom, the second law firm
When irrationality isn’t the issue
Adapted from “Is Your Counterpart Rational . . . Really?” by Deepak Malhotra (professor, Harvard Business School), first published in the Negotiation newsletter, March 2006.
How can you negotiate with someone who seems irrational? First, by questioning whether it is reasonable for you to judge your counterparts as irrational. As it turns out, behavior that negotiators
After the deal breaks down
Adapted from “Redoing the Deal,” by Jeswald W. Salacuse (professor, Fletcher School of Law and Diplomacy, Tufts University), first published in the Negotiation newsletter, August 2005.
If you’re like many professionals in these uncertain times, you are probably spending as much time redoing old deals as you are negotiating new ones. Here are four suggestions on
The Ins and Outs of Arbitration
Adapted from “How to Break a Stalemate,” by Frank E. A. Sander (Professor Emeritus, Harvard Law School), first published in the Negotiation newsletter.
A “one-shot” form of dispute resolution, arbitration is usually faster and cheaper than litigation. In addition, rather than being assigned a judge, parties are able to select their arbitrator. There are several forms
Negotiation Games
Adapted from “Rolling the Dice in Court,” first published in the Negotiation newsletter.
Going to trial, it’s said, is like rolling the dice. That proved true in June 2006, when an exasperated federal judge, the Honorable Gregory A. Presnell, ordered litigants to play a game of Rock Paper Scissors if they could not privately resolve their
David Hoffman
David Hoffman teaches the Mediation course at Harvard Law School, and has served as a guest lecturer in a variety of PON programs. He is a mediator, arbitrator, and attorney at Boston Law Collaborative, LLC, which he founded in 2003. BLC was the recipient in 2009 of the American Bar Association’s annual Lawyer as
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