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Anatomy of a Mediation: A Dealmaker's Distinctive Approach to Resolving Dollar Disputes and Other Commercial Conflicts

 by James C Freund
 
 Copyright: 2012

 Product Details >> 

Product Details

  • ISBN Number: 9781402418570
  • Page Count: 376
  • Number of Volumes: 1
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"For more than 20 years, Freund has applied his learning and experience to the successful mediation of commercial disputes of every variety. Anatomy of a Mediation brings it all together. . . .The book is beautifully written . . ."
– John D. Feerick, Former Dean of Fordham University School of Law, and Director of the Feerick Center for Social Justice and Dispute Resolution

“Anatomy of a Mediation is a cherished one-on-one tutorial by a master of the art – the quintessential dealmaker/problem solver Jim Freund.”
– Judith S. Kaye, Former Chief Judge of the State of New York; Of Counsel, Skadden, Arps, Slate, Meagher & Flom LLP

For his tenth book, Jim Freund has crossed over from a lifetime of negotiating M&A and other business deals to tackle the equally demanding task a mediator confronts in resolving disputes. Freund has been honing his mediator’s craft over the past two decades, with particular emphasis on the toughest of all cases to settle — the classic zero sum game of a sizeable one-shot dollar dispute over hotly contested issues between sophisticated, well-represented parties. Freund’s problem-solving approach — rooted in his transactional experience and dealmaking mentality — is distinctive and has proved quite effective.

In Anatomy of a Mediation, Freund describes his evaluative technique in detail and takes the reader step-by-step through its application in resolving four expansive hypothetical situations, each focusing on a different type of dispute — such as a case involving multiple parties and another with significant deal elements and forward-looking considerations.
  Table of Contents
  In a Nutshell
Chapter 1: Why Disputes Should be Settled
Chapter 2: Why Resolving Disputes is Such Tough Work
  • : Obstacles to Settling41
  • : The Biggest Difficulty44
  • : Some Thoughts About Litigators46
  • : What About Getting to Yes and Smart Negotiating?50
Chapter 3: Why Mediation Can Work Where Direct Negotiations Fail
Chapter 4: About the Mediator
  • : The Qualities of a Good Mediator57
  • : How About the Use of Humor?59
  • : The Mediator’s Approach60
Chapter 5: The Initial Steps of a Mediation
  • : How the Parties Have Come to be Mediating67
  • : Conflicts, Fees, Scheduling and Lineup69
  • : The Mediation Agreement71
  • : Pre-Mediation Submissions and Responses74
Chapter 6: The Put Case
  • : The Facts81
  • : Some Mediator Musings83
  • : Plaintiff and Defendant Variances87
  • : Pre-Mediation Settlement Negotiations89
Chapter 7: The Beginning Joint Session
  • : Presentations by the Parties93
  • : The Mediator’s Warning Admonition96
  • : Questions in Joint Session97
Chapter 8: The Caucus Discussion of the Merits
  • : Why Private Caucuses?99
  • : Gathering Information101
  • : The Merits Discussion102
Chapter 9: Developing the Mediator’s Strategy
  • : Forming a Realistic Expectation109
  • : Relatively Realistic Parties114
  • : Put Case Strategy115
Chapter 10: Dealing with the Parties on the Dollars
  • : My Non-Transmittal-of-Offers Technique119
  • : Dollar Discussions in The Put Case121
Chapter 11: The Endgame
  • : A Break in the Proceedings127
  • : Resumption of the Proceedings130
  • : Adding a Creative Element131
  • : Reflections on the Endgame133
  • : The Climax of The Put Case139
Chapter 12: What if . . . ?
  • : Four Possible Continuing Relationship Scenarios144
  • : Effects on the Mediation148
Chapter 13: The Art Case
  • : The Facts153
  • : The Merits155
  • : The Dollars159
  • : Dealing with Unreality162
  • : Termination vs. Adjournment166
Chapter 14: The Mediator’s Proposed Resolution
  • : How it Works169
  • : A Suggestion to Parties and Their Counsel174
  • : The Proposed Resolution176
Chapter 15: The Contrast with One-Shot Dollar Disputes
Chapter 16: The Split-Up Case
  • : The Facts189
  • : Threshold Matters; Categories of Issues192
  • : Initial Steps; The Open Session196
  • : Hearing Grievances in Private Caucus198
Chapter 17: The Mediator at Work
  • : Assessing Priorities203
  • : Determining Which Wrongs Won’t Be Righted205
  • : Carrots and Sticks209
  • : Requesting Proposals from the Parties212
  • : The Parties’ “Compromise” Positions214
Chapter 18: The Mediator’s Realistic Expectation
  • : Developing a Feasible Resolution Model219
  • : Presenting the Mediator’s Split-Up Recommendation225
Chapter 19: Narrowing the Gaps
  • : Shuttling Back and Forth with Parties’ Proposals229
  • : The Role of the Lawyers234
  • : Progress Slows to a Crawl239
Chapter 20: Final Steps
  • : Preparing a Draft Agreement in Principle241
  • : Negotiating the Agreement in Principle246
  • : Going to Contract248
Chapter 21: Three’s a Crowd
  • : Some Examples of Multi-Party Negotiating255
  • : The Case for Settlement257
  • : Getting the Mediation Started258
Chapter 22: The Casino Caper
  • : The Facts263
  • : The Opening Rounds268
Chapter 23: Devising a Strategy
  • : Discerning a Tentative Format for Resolution271
  • : Gaining Valuable Information274
  • : Marketing the Revised Format277
  • : Some Reflections on Multi-Party Mediation284
Chapter 24: Reaching a Resolution
  • : A Draft Agreement in Principle (with Holes)287
  • : The Forward-Looking Deal Aspects288
  • : The Denouement290
  • : My Proposed Resolution292
Chapter 25: Negotiating—The Mediation Lawyer’s Key Attribute
  • : The Importance of Negotiating Skills299
  • : A Note to Deal Lawyers301
  • : Choosing a Mediator306
Chapter 26: The Lawyer-Client Relationship
  • : The Decision to Mediate309
  • : Preparing Your Client for the Negotiating to Come312
  • : Some Thoughts on the Negotiating Process315
Chapter 27: The Lawyer’s Dealings with the Mediator
  • : How Not to Do It322
  • : The Better Way325
  • : Help!328
  • : Handling Negative and Positive Leverage329
  Wrapping Up
  Table of Appendices
Appendix A: The Mediation Morning Line
Appendix B: Different Strokes—A Comparison Between Mediating Global Conflicts and Commercial Disputes
Appendix C: On the National Scene
Appendix D: My Mediator’s Pep Talk to the Parties
  Endnotes
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