Conflict Resolution

Advanced Problem-Solving Strategies

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Don Philbin, a Texas mediator, has developed some amazing software that allows parties and mediators to make the whole negotiation process more rational and predictable. The software is now available at http://ww1.pictureitsettled.com. I’ve heard Don talk about his techniques before, and have borrowed some of his ideas in a few mediations by making crude graphs embodying part of his methods. Basically what you do is ask the attorneys to rank the probabilities of various possible trial outcomes, from the chances of a defense verdict, to some intermediate levels of recovery, to a home run for the plaintiff. Then you can connect the dots by drawing two curves representing each party’s best assessment of the likelihood of a range of possible […]

Last week I heard Randall Kiser talk about research he and others have done on so-called “decision error” in taking cases to trial. This study got a fair amount of publicity when it was first published, and is frequently cited by judges and mediators in attempting to persuade parties to litigation that they are generally better off accepting a settlement than in pursuing cases to trial. This research found that about 60% of the time, plaintiffs who reject the defendant’s best settlement offer get a worse result at trial. Defendants only guess wrong about 25% of the time, but tend to lose a lot more money when they do. Even though I agree that parties are usually better off settling […]

I have nothing substantive to add about the ups and downs of seven years of litigation in the Barbie vs. Bratz doll wars case. I’m not going to do an analysis of the legal issues in the case, even though they are somewhat interesting. All I want to do is remind people that this is the sort of thing that happens in litigation. Mattel won a $100 million judgment against its rival MGA a couple of years ago. That judgment was reversed last year, and in a new trial, MGA this week won an $89 million jury verdict against Mattel. In the same case. Was it worth it? MGA may have won the case (of course it’s not over yet), […]

While most of us will be free to pursue family and other activities this weekend, it looks like Senators Chris Dodd and Richard Shelby will be spending the weekend trying to hammer out an agreement between Republicans and Democrats on new financial regulation legislation.  That is because Majority Leader Harry Reid set a vote for 5:00 p.m. on Monday on the Dodd bill.  Republicans have threatened to prevent debate on the bill by unanimously voting against cloture.  So by setting the time for a vote, Reid is forcing one of three possible outcomes.  Either a deal is struck and a number of Republican Senators will then allow the bill to come up for a vote.  Or no deal is made […]

One of the things that mediators sometimes do is to try to get parties to think about lawsuits as a series of probabilistic outcomes, i.e., what are the chances the case will get dismissed before trial, that the plaintiff will prevail before a jury, that there will be an appeal, that the defendant will file bankruptcy, etc.  Parties often need to make a conceptual leap before they can even begin thinking about their dispute in those terms, however.  A lawsuit does not start out as a game of chance.  It starts out as a story in which one or both  parties injured or betrayed the other, and both parties seek vindication and compensation for their respective grievances.  Clients approach a […]