Table of Contents
In a Nutshell 15
The Distinctive Approach 15
The Dollar Dispute 18
Scope of the Book 20
Other Commercial Conflicts 21
Why Mediation? 23
Difficulties Encountered in Mediation 26
The Book Audience 29
A Dealmaker's Frame of Mind 30
Putting in a Good Word for Compromise 34
Part I The Case for Mediation 37
Chapter 1 Why Disputes Should be Settled 39
Chapter 2 Why Resolving Disputes is Such Tough Work 41
Obstacles to Settling 41
The Biggest Difficulty 44
Some Thoughts About Litigators 46
What About Getting to Yes and Smart Negotiating? 50
Chapter 3 Why Mediation Can Work Where Direct Negotiations Fail 53
Chapter 4 About the Mediator 57
The Qualities of a Good Mediator 57
How About the Use of Humor? 59
The Mediator's Approach 60
Chapter 5 The Initial Steps of a Mediation 67
How the Parties Have Come to be Mediating 67
Conflicts, Fees, Scheduling and Lineup 69
The Mediation Agreement 71
Pre-Mediation Submissions and Responses 74
Part II Mediating the Dollar Dispute 79
Chapter 6 The Put Case 81
The Facts 81
Some Mediator Musings 83
Plaintiff and Defendant Variances 87
Pre-Mediation Settlement Negotiations 89
Chapter 7 The Beginning Joint Session 93
Presentations by the Parties 93
The Mediator's Warning Admonition 96
Questions in Joint Session 97
Chapter 8 The Caucus Discussion of the Merits 99
Why Private Caucuses? 99
Gathering Information 101
The Merits Discussion 102
Chapter 9 Developing the Mediator's Strategy 109
Forming a Realistic Expectation 109
Relatively Realistic Parties 114
Put Case Strategy 115
Chapter 10 Dealing with the Parties on the Dollars 119
My Non-Transmittal-of-Offers Technique 119
Dollar Discussions in The Put Case 121
Chapter 11 The Endgame 127
A Break in the Proceedings 127
Resumption of the Proceedings 130
Adding a Creative Element 131
Reflections on the Endgame 133
The Climax of The Put Case 139
Chapter 12 What if…? 143
Four Possible Continuing Relationship
Scenarios 144
Effects on the Mediation 148
Chapter 13 The Art Case 153
The Facts 153
The Merits 155
The Dollars 159
Dealing with Unreality 162
Termination vs. Adjournment 166
Chapter 14 The Mediator's Proposed Resolution 169
How it Works 169
A Suggestion to Parties and Their Counsel 174
The Proposed Resolution 176
Part III Deal-Dispute Mediating 183
Chapter 15 The Contrast with One-Shot Dollar Disputes 185
Chapter 16 The Split-Up Case 189
The Facts 189
Threshold Matters; Categories of Issues 192
Initial Steps; The Open Session 196
Hearing Grievances in Private Caucus 198
Chapter 17 The Mediator at Work 203
Assessing Priorities 203
Determining Which Wrongs Won't Be Righted 205
Carrots and Sticks 209
Requesting Proposals from the Parties 212
The Parties' "Compromise" Positions 214
Chapter 18 The Mediator's Realistic Expectation 219
Developing a Feasible Resolution Model 219
Presenting the Mediator's Split-Up Recommendation 225
Chapter 19 Narrowing the Gaps 229
Shuttling Back and Forth with Parties' Proposals 229
The Role of the Lawyers 234
Progress Slows to a Crawl 239
Chapter 20 Final Steps 241
Preparing a Draft Agreement in Principle 241
Negotiating the Agreement in Principle 246
Going to Contract 248
Part IV Mediating Multi-Party Disputes 251
Chapter 21 Three's a Crowd 253
Some Examples of Multi-Party Negotiating 255
The Case for Settlement 257
Getting the Mediation Started 258
Chapter 22 The Casino Caper 263
The Facts 263
The Opening Rounds 268
Chapter 23 Devising a Strategy 271
Discerning a Tentative Format for Resolution 271
Gaining Valuable Information 274
Marketing the Revised Format 277
Some Reflections on Multi-Party Mediation 284
Chapter 24 Reaching a Resolution 287
A Draft Agreement in Principle (with Holes) 287
The Forward-looking Deal Aspects 288
The Denouement 290
My Proposed Resolution 292
Part V Representing a Party in Mediation 297
Chapter 25 Negotiating-The Mediation Lawyer's Key Attribute 299
The Importance of Negotiating Skills 299
A Note to Deal Lawyers 301
Choosing a Mediator 306
Chapter 26 The Lawyer-Client Relationship 309
The Decision to Mediate 309
Preparing Your Client for the Negotiating to Come 312
Some Thoughts on the Negotiating Process 315
Chapter 27 The Lawyer's Dealings with the Mediator 321
How Not to Do It 322
The Better Way 328
Help! 328
Handling Negative and Positive Leverage 329
Wrapping Up 335
Appendices 343
Appendix A The Mediation Morning Line 345
Appendix B Different Strokes-A Comparison Between Mediating Global Conflicts and Commercial Disputes 353
Appendix C On the National Scene 365
Appendix D My Mediator's Pep Talk to the Parties 369
Endnotes 373
