General Legal

Book Review: STRUCTURED NEGOTIATION, A Winning Alternative to Lawsuits, Lainey Feingold, 2016

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Early in her legal career, Lainey Feingold was fired from a law firm. The day before she was scheduled to become a partner, the head of the firm told her she would never become a partner at the firm, stating “You lack grace and equanimity.” Feingold went from hearing those words turn her desired destiny upside down to letting them lead her to towards a career of practicing law with those and many other collaborative practices, detailed in Chapter 16. Her work has formed the basis of a methodology she and her practice colleagues coined “Structured Negotiation.”

In her book, Feingold introduces us to this alternative dispute resolution methodology, defined by one big firm lawyer as mediation without a mediator. The book is neatly organized into Seven Stages, from Stage One: Preparing a Structured Negotiation Case to Stage Seven: Post-Settlement Strategies, over 16 Chapters. It includes Templates and Sample documents, and details of several Stuctured Negotiations that Feingold and her practice colleagues ( primarily Linda Dardarian) handled over the past 20 years.

While many of the examples focus on Feingold’s advocacy for members of the blind community seeking access to ATMs, talking prescription labels, and baseball, the book has broad application to any practitioner who recognizes that certain types of claims, even very large ones, can provide opportunities for many disputants to be better served by the use of this process. While some claims need a Court system and the formal legal process, many do not. As Feingold puts it:

“But filing a complaint should not be the only option for claims resolution. The legal profession – and the public it serves- deserves alternatives that are less costly, less stressful, and more cooperative. Clients need a forum where thier stories matter and they can be ( and feel) heard.”

Whether you believe this or not, you should be aware of this alternative. Many think that those who represent big institutions are reluctant to participate in this out of court process. Yes, this is true. But Feingold has paved the way. She and her colleagues have spent years , patiently, working with many of the largest of these — Bank of America, Walgreens, Target, Safeway, TransUnion, Charles Schwab, others, and even Major League Baseball. And in her work, she provides information on all of these Structured Negotiations, so that you can use her success to contribute to yours.

If you take away nothing from this book, you will no doubt benefit from Chapter 16 which is invaluable. The legal profession is now undergoing a mindset change, where there is a real focus on “soft skills.” These are interpersonal skills, stress management, self confidence, mindfulness, optimism, the ability to convey empathy, and others.

Law students, lawyers young and old, law professors — read the book, but do not put it on the shelf until you have spent some time reading and self – reflecting on the collaborative tools that are discussed in Chapter 16.

You will be better at everything you do, if you can incorporate some of the Structured Negotiation collaborative practices into your life and your life’s work.

Buy the book on iBooks

Questionnaire on Dispute Resolution Clauses from the Transnational Law Center at the University of Ghent

Call for Participation by surveyindividuals who have experience with commercial dispute resolution.in a Questionnaire on Dispute Resolution Clauses from the Transnational Law Center at the University of Ghent
 
There is a lack of clarity regarding the obligations that arise from dispute resolution agreements with a mediation/conciliation component. In order to reduce this uncertainty, a chapter of the BOF funded PhD research of Maryam Salehijam (supervisor: Professor Maud Piers) from the Transnational Law Center at the University of Ghent focuses on the question “What are the parties’ obligation under an ADR agreement?” To answer this question, the research is divided into two stages, the first stage involves a questionnaire that assesses the familiarity of legal professionals –including lawyers and third-party neutrals- in selected jurisdictions with dispute resolution clauses calling for non-binding ADR mechanisms such as mediation/conciliation. Moreover, the questionnaire provides willing participants with the opportunity to copy and paste a model or previously utilized dispute resolution clause. In the second stage, the clauses gathered as well as clauses extracted from other sources will be content coded using the software NVivo in order to determine which obligations tend to be reoccurring in the majority of the clauses under analysis.
 
The questionnaire targets individuals who have experience with commercial dispute resolution. The participation in the short questionnaire will require minimum effort, as most questions only require a simple mouse-click. Please note that the information entered in the survey is kept anonymous unless indicated to the contrary by the participants. Moreover, as the analysis takes place on an aggregated level, the findings will not disclose personally identifiable information. Accordingly, the information provided will only serve scientific purposes.
 
To complete the questionnaire, please click on the following link: http://lawsurv.ugent.be/limesurvey/index.php/678366?lang=en (closing date 29th of April 2017).
 
If you wish to provide the model/previously used dispute resolution clauses without completing the questionnaire, please email Maryam Salehijam at maryam.salehijam@ugent.be
 
Thank you for taking this request into consideration.

Book Review Common Sense: Making Good Decisions in Real Estate Workouts Paperback – August 20, 2016

A useful book  for Bank workout officers, negotiators and mediators  dealing with real estate borrower/lender relationships

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I met Mark Weiss a few years back through a shared interest in Storytelling. With Mark you are never quite sure that you know everything that he does. I knew he had written a book or two  (this is his 8th I think), but I did not know about this book. I learned about it when Mark handed me a copy recently and said that he thought I might enjoy reading it. He was right. It is a quick read. The intended audience for the book is really for bank “workout” officers who will be charged with the responsibility of managing negotiations for properties that come into a bank’s portfolio as a result of a foreclosure or other circumstance. Mark has a wealth of experience in these kinds of situations. What makes this book interesting and worth a read is the wealth of knowledge contained in the book, but also the weaving in of his personal stories ( remember, he is an excellent storyteller as well) recounting tales where deals go bad, are rescued ( sometimes) and the lessons learned from both. So, while the book is truly a “handbook” or “desk-reference” for workout officers, it reads a bit like a documentary, and sometimes even as an action story! Another potential audience is anyone who, like me, mediates commercial disputes. Mark’s understanding of the workout process, is a roadmap for negotiators as well as mediators who are concerned with discovering BATNA/WATNA and the real needs and interests of both sides to these workouts.  I recommend this helpful,  quick and easy read.

Available at Amazon

Online Tools for Arbitration – Free 30-Min. Webinar – September 14, 2016

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Learn how arbitration tasks typically done face to face can now easily be done online, resulting in considerable time and cost savings.

This webinar will be presented by Thomas P. Valenti, in conjunction with Giuseppe Leone, founder of Virtual Mediation Lab, a project sponsored by ACR Hawaii.

Mr. Valenti is an Attorney, Arbitrator, Facilitator and Trainer. His law practice has included representing many clients in arbitration. In addition he served as an Arbitrator on panels with the American Arbitration Association (AAA) as well as serving as a public arbitrator for theFinancial Industry Regulatory Authority (FINRA). He is also a Chartered Arbitrator with theChartered Institute of Arbitrators (CIArb).

You will walk thru a typical arbitration – from beginning to end – and learn how some tasks can be performed more efficiently online, especially in complex and international cases.

This free 30-min. webinar:

  • Is intended for arbitrators, parties and their legal representatives
  • Can be joined by PC, MAC, iPad, iPhone, Android tablet or smartphone
  • Will take place Wednesday, September 14, 2016 at Noon EST (9:00am Pacific Time, 11:00am Central Time, 5:00pm London, UK Time)

ONLINE REGISTRATION
Please fill out this Online Registration Form

Quicker and Cheaper Litigation

In two series of reforms, The Woolf Reforms and The Jackson Reforms, control the process of proceeding by active case management (taking away the decision making and active case management from the parties) was to be handed to the Court to improve efficiency; and the costs would be made proportionate. Costs Budgeting was also introduced. It is generally agreed that both of these Reforms have had the opposite effect of increasing delays and increasing costs.
Two pilot schemes are now running and will continue to run until October 2017 in cases predominantly in the Chancery Division, Commercial Court, the Technology and Construction Court and the Mercantile Court. http://ow.ly/oXyp302o0Uv