HUMAN LAW MEDIATION

Lawyers must not shy away from aggressive 1st offers

One of the trickiest stages of any negotiation is when to make the opening offer.

This is something which I have considered in depth with fellow mediators and also as part of the training I do with lawyers.

In my experience most lawyers try to avoid going first but should this really be the case?

As leading US mediator, Diane Levin points out on Mediation Channel:

No one ever wants to go first. But that first number possesses almost talismanic properties — it can profoundly influence how the other side perceives the value of what you demand. Studies have in fact shown that negotiators who make the first offer often do better than those who wait. Why? According to an article by Kellogg School of Management Morris and Alice Kaplan Professor of Ethics and Decision in Management Adam Galinsky,

The answer lies in the fact that every item under negotiation (whether it’s a company or a car) has both positive and negative qualities — qualities that suggest a higher price and qualities that suggest a lower price. High anchors selectively direct our attention toward an item’s positive attributes; low anchors direct our attention to its flaws…

Anchoring research helps clarify the question of whether to make the first offer in a negotiation: by making the first offer, you will anchor the negotiation in your favor…

While this may be true, Galinsky has also found that one of the most common negotiation mistakes is to make a first offer that isn’t aggressive enough.

An aggressive first offer can work in your favor for several reasons. Take the perspective of the seller: more extreme first offers lead to higher final settlements. For example, higher listing prices lead to higher final sale prices in real estate transactions because, as we’ve seen, high-anchor offers lead buyers to focus on a negotiated item’s positive attributes. In addition, an aggressive first offer allows you to offer concessions and still reach an agreement that’s much better than your alternatives…

One of the best predictors of negotiator satisfaction with an outcome is the number and size of the concessions extracted from an opponent. By making an aggressive first offer and giving your opponent the opportunity to “extract” concessions from you, you’ll not only get a better outcome, but you’ll also increase the other side’s satisfaction.

But:

Of course, it’s important that your opening offer isn’t absurdly aggressive. The first offer provides preliminary insight into the bargaining zone and range of possible agreements. An absurd offer can lead the receiver to believe that no agreement exists that will be acceptable to you both and therefore can cause her to walk away from the negotiation.

My views- And their lies the rub, if you want to negotiate effectively you have to strike the right balance and the key lies in effective preparation. As long as lawyers treat negotiation(and mediation) as some form of court case, this is not going to help them.  If they shy away from making 1st offers they will lose another tool in their amoury for effective negotiation. 

Potential cost savings of mediation in family disputes

Some interesting statistics which highlight some of the potential costs savings of using mediation and other forms of dispute resolution. With the Telegraph doing a series on infidelity and relationship breakdown, this could be very relevant to many people.

David Hoffman's Boston Law Collaborative has analysed 199 of its recent divorce cases, and found that mediation, collaborative divorce and litigation all produced high rates of successful settlement.

Mediation was by far the least expensive option, with a median cost of $6,600, compared to $19,723 for a collaborative divorce, $26,830 for settlements negotiated by rival lawyers, and $77,746 for full-scale litigation.

Source of post - Mediator Blah Blah

Bullying in the workplace endemic but ignorance remains

Bullying in the workplace is "endemic" in the UK, affecting 80% of employees, the Samaritans charity has warned.

The charity said a third of those it surveyed were so unhappy they had considered leaving their job.

Its research identified young employees as the group most vulnerable to stress, and the least able to discuss concerns with managers or colleagues.

In my experience there are real barriers to dealing with workplace bullying:

1 Ignorance of the Subject- Fundamentally whilst bullying can be overt it can also be extremely subtle. For example one of the classic ways to bully is by manipulation of holiday schedules or a refusal to delegate work.

2 Embarrassment remains - It is stigmatisng to admit that one is being bullied. As a consequence often victims of bullies suffer in silence. This further contributes to the problem. Culturally aggression is supported rather than passivity.

3 Victim Needs to be Empowered - In an era which encouarges people to be victims, this can further exaberate problems which individuals have. Victims may have have a pre-dispoition to be being bullied. Only if this is so, this should be explored and more undersatanding should be brought to bear.

4 Organisations need to focus on bottom-line. The damage caused can be great such as legal costs, time spent wasting on the problem etc. Is it not time to deal with the problem? More often than not,  orgaanisations are passive and in effect bullying behaviour is endorsed. 

Lawyers - Do you wish to innovate...? Then enjoy this

Lawyers looking to start their New Year with purpose can do a lot worse than to look at two excellent resources:

Delia Venables is one of the most respected IT/Law Consultants & journalists within the United Kingdom. She provides a consistently high quality journal at an excellent value and continues to write the Internet Newsletter for Lawyers & Law 2.0 with Nick Holmes.

The latest edition includes. 

1. Firstly, she provide an article on Software as a Service - how it works, what makes it special, which are the main legal software companies already providing their software in this way, and why it is going mainstream in 2008.

2. Mark Harrison of small firm e-Litigate, describes how he "went virtual", giving a blow by blow account of the software, services and resources needed to do this. Probably, quite a few more firms will "go virtual" in 2008.

3. Susan Doe, Legal Librarian of international firm Sidley Austin, describes how legal research in England differs from legal research in the USA - different types of legal resource and different ways of using these resources.

4. Laurie Kaye provides a concise guide to what you should know about digital media law for the year ahead, including liability for third party content, privacy, jurisdiction and the role of technical standards.

5. Berwins LLP, a medium sized firm in Harrogate, describes why it decided to produce its own HIPs and how it does this.

6. Graham Smith has recently brought out the fourth edition of his "Internet Law and Regulation" and we ask him how the topic has changed over the last 11 years, since he brought out the first (slim) edition.

7. Stephen Moore describes a new (free) legal resource called CaseCheck which he has set up. This uses a Web 2.0 platform to present and analyse Scottish Court and EAT case summaries.

8. Robert Dow, Chairman of PLC, describes how his company is working on its own Law 2.0 products in connection with the new Companies Act and how PLC hopes to involve practitioners in sharing their knowledge and expertise.

9. Nick Holmes considers which Web 2.0 innovations are actually going to be of most use to lawyers (as distinct from the general public) over the next year.

The newsletter is primariy a printed publication (not everyone wants to spend their whole day glued to a computer) but it is also provided online, without extra charge. You can see what the newsletter looks like here. You cannot see the full stories unless you are a subscriber but you can see how it "looks and feels".

I thoroughly recommend Delia's and Nick work. It should be borne in mind that both have been top of their field for a fair time. 18 months ago I delivered a talk where Delia attended and one City lawyer partner said"Wow. You got Delia Venables to attend! How did you manage that?"

Alternatively......

Leading UK Blawgger,Charon QC - has recently not just provided an excellent Blawg Review(What is Blawg Review?) but he has just prepared a Weekend Podcast covering legal issues. As he writes "Each weekend, we are doing a 35-40 minute netradio programme. This week Charon talks to John Bolch of Family Lore on family law, Carl Gardner, Head of Legal, on the Peter Hain ‘Donorsgate’ affair, myself on mediation, Geeklawyer on solicitors wearing wigs and some developments in Intellectual Property Law and we also have a reflective post from Peter Rouse of Advizory.

Listen to the Weekend Review Podcast on Consilio"

As usual with Charon, he blends between law and current affairs with ease, serious content with humour, as well. 

Both Charon QC/Venables & Holmes are refreshing with the innovation and thought provoking material which they provide. 

More of the same, please.