Arbitration & Mediation

When Negotiation Fails, Do You Flip a Coin? Grab a Random Stranger?

By Victoria Pynchon

Wheat and Chaff: Juries and Litigation

Let me tell you a short story.

A senior in-house lawyer is meeting with the CEO to talk about a problem the in-house lawyer had been asked to solve.  The in-house lawyer describes how his efforts at negotiation had failed, so he had taken steps to find a random person off the street so that person could resolve the problem for the in-house lawyer.  The CEO looked at the in-house lawyer like he was out of his mind.  The in-house lawyer, now worried by the CEO's reaction, asked if the CEO would feel better if he instead chose 12 people randomly from off the street.  The CEO fired the in-house lawyer.

Does anybody think the CEO is crazy?  Me either.  But let's rerun the story with three extra sentences.

For remainder of story, run right over to Patrick J. Lamb's blog, In Search of Perfect Client Service.

Knowing that a bench or jury trial is the only Better Alternative to a Negotiated Agreement (BATNA) what's a concerned CEO to do?  No, I'm not going to say "hire a mediator."  I'm going to say this.  Hire a litigator who understands and is skilled at interest-based bargaining.  The mediator, after all, is your last option.  You need an attorney who maximizes the potential for the best negotiated resolution possible at every major turning point in the litigation.  If you've hired a hot-head litigation firm, that's good.  There's absolutely nothing wrong with playing hardball.  Just make sure you also have available the litigation marital counselor -- at least one attorney in the hardball lawfirm, or settlement counsel outside of it, who is able to call a cease-fire and bring the parties to the negotiation table.

I like what Patrick J. Lamb has to say in his blog and in his bio.  He's got big firm background and 21st century thinking.  If I were looking for a business litigator/dispute resolver/efficiency machine, it's to people like Patrick I would go.

Also, see today's post at the IP ADR Blog about patent infringement jury trials and what you don't know about what your jury is thinking can hurt you.

Full post as published by Settle It Now Negotiation Blog on January 27, 2009 (boomark / email).