Negotiating with the KingNegotiating with the King2010 ABA Annual Meeting2010 ABA Annual Meeting

Steve Joseph, Elizabeth Steve Joseph, Elizabeth Bader, Jerry Roscoe, Gerald Bader, Jerry Roscoe, Gerald

Strachan and Jacqueline Strachan and Jacqueline TessendorfTessendorf

Who is the king?Who is the king?

Why do we care?Why do we care?

Scenario 1Scenario 1

You are negotiating with a You are negotiating with a king. The mediator is a loyal king. The mediator is a loyal

subject of the king. You come subject of the king. You come from a far away land. from a far away land.

Follow ProtocolFollow Protocol

Professor Andrea Professor Andrea SchneiderSchneider Ethical, Experienced, Ethical, Experienced,

Trustworthy, Trustworthy, problem solversproblem solvers

Smile and the world Smile and the world smiles with yousmiles with you

Scenario 2Scenario 2

You are negotiating with the king of a You are negotiating with the king of a far away land. The mediator is not far away land. The mediator is not loyal to the king. loyal to the king.

Scenario 3Scenario 3

You believe that you have a You believe that you have a strong case and could win at strong case and could win at trial but the other party has trial but the other party has

vastly superior financial vastly superior financial resourcesresources

Would you mind explaining that?Would you mind explaining that?

Which is better, “Which is better, “Strong like BullStrong like Bull” or ” or ““Skinny like toothpick”?Skinny like toothpick”?

Scenario 4Scenario 4

Scenario 4Scenario 4

The case has a remote The case has a remote potential of exceeding the potential of exceeding the insurance policy limits. The insurance policy limits. The

Plaintiff’s counsel is making a Plaintiff’s counsel is making a bad faith argument. The bad faith argument. The insurance representative insurance representative

thinks the value is well below thinks the value is well below the policy. The insured's the policy. The insured's

personal counsel is present. personal counsel is present.

Scenario 5Scenario 5

In a multi party mediation, one In a multi party mediation, one party arrives late and tries to party arrives late and tries to

force a “take it or leave it” force a “take it or leave it” offer before the issues have offer before the issues have

been fully developed.been fully developed.

Take it or leave itTake it or leave it

Partition multiple exchangesPartition multiple exchanges Plan an offer & concession strategyPlan an offer & concession strategy Issue sequenceIssue sequence