TreatiseTreatise

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

 by James C. Freund
 
 Copyright: 2012

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Product Details

  • ISBN Number: 9781402418570
  • Page Count: 376
  • Number of Volumes: 1
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For his tenth book, James C. 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.

Jim 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 deal-making mentality – is distinctive and has proved its effectiveness on a regular basis.

In Anatomy of a Mediation, Jim describes his 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. You’ll learn:

  • How to convert that super-charged emotional interplay between adversaries into lower-pressure but more constructive bargaining.
  • Why, in dollar disputes, Jim rarely adopts the usual method of carrying offers and counters back and forth, in order to conduct confidential negotiations with each party to arrive at a common resolution level.
  • How the mediator recognizes and goes about dealing with the most pervasive deal-killers certain parties present – indifference to achieving compromise and a lack of reality in appraising the situation.
  • What’s crucial when you represent a party – including the need to educate your client that what a successful mediation produces is often less of a “win-win” result and more of a mutually satisfactory outcome that’s at least preferable to ongoing litigation.
  • How an unabashedly evaluative mediator goes about his work – generating real movement from a standing start, prodding the parties toward a feasible settlement, and if that proves unavailing, then persuading the parties to come to terms on the basis of the mediator’s proposed resolution of the dispute.
Anatomy of a Mediation is a cherished one-on-one tutorial by a master of the art.  The quintessential deal maker/problem solver Jim Freund believes that mediation is the most straightforward, best resolution for the parties—particularly for one-shot dollar disputes and other commercial matters—and amply proves his point.” 

— Judith S. Kaye, Former Chief Judge of the State of New York; Of Counsel, Skadden Arps, Slate, Meagher & Flom LLP

"James Freund has enjoyed an illustrious career as a lawyer…a masterful deal maker… widely read author…lecturer…and a popular law professor. 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 and is a kind of tour de force for a lawyer who has given so much of himself to others… a book not to be without for mediators, mediation participants, and teachers."

— 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 superb job.  I have seen no book about mediation which compares with it....  First and foremost, it is the best analysis emphasizing the positive role of an evaluative mediator.... It makes a persuasive assertion that the extensive negotiations required are best conducted between each of the parties and the mediator separately.... Anatomy of a Mediation should be read not only by mediators and aspiring mediators but by lawyers who represent clients in mediation, and it should be in the library of all commercial lawyers who need to be aware of the availability of evaluative mediation.”

— Charles B. Renfrew, Chairman Emeritus of the Board of the CPR Institute for Dispute Resolution; Former Federal District Court Judge, San Francisco

  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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