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Why You Should Hold It
October 29, 2015
When Prime Minister David Cameron is giving an important speech, or in the midst of difficult negotiations, he relies on a simple mental trick known as the full bladder technique. The name is not a metaphor. Cameron drinks lots of liquid and then deliberately refrains from urinating, so that he is “desperate for a pee.” The Prime Minister believes that such desperation comes with benefits, including enhanced clarity and improved focus. * * * That’s exactly what happened. When people had to pee,...
October 29, 2015
When Prime Minister David Cameron is giving an important speech, or in the midst of difficult negotiations, he relies on a simple mental trick known as the full bladder technique. The name is not a metaphor. Cameron drinks lots of liquid and then deliberately refrains from urinating, so that he is “desperate for a pee.” The Prime Minister believes that such desperation comes with benefits, including enhanced clarity and improved focus. * * * That’s exactly what happened. When people had to pee,...
Thomson Reuters Announces IBM Watson Partnership
October 28, 2015
In its second major deal to be announced in as many weeks Thomson Reuters has revealed that it has entered into a partnership with IBM to use its artificial intelligence solution Watson across the breadth of its customer solutions. The Toronto and New York-listed publishing giant will explore the application of Watson – a cognitive computing system that learns and develops as it is used – across the legal, tax and finance departments. Thomson Reuters’ chief strategy officer Brian Scanlon...
October 28, 2015
In its second major deal to be announced in as many weeks Thomson Reuters has revealed that it has entered into a partnership with IBM to use its artificial intelligence solution Watson across the breadth of its customer solutions. The Toronto and New York-listed publishing giant will explore the application of Watson – a cognitive computing system that learns and develops as it is used – across the legal, tax and finance departments. Thomson Reuters’ chief strategy officer Brian Scanlon...
Taking Advantage of Opportunities in ‘Litigotiation’
October 28, 2015
When discussing negotiation of litigated cases, practitioners and academics often ignore pretrial litigation activities, treating them as if they are unrelated to the negotiation of the ultimate issues. Interactions leading up to the final settlement event often are considered merely preparation for the endgame, if they are considered at all. This narrow conception of negotiation in litigated cases misses critical parts of the dispute resolution process and thus leads to misconceptions about how it really...
October 28, 2015
When discussing negotiation of litigated cases, practitioners and academics often ignore pretrial litigation activities, treating them as if they are unrelated to the negotiation of the ultimate issues. Interactions leading up to the final settlement event often are considered merely preparation for the endgame, if they are considered at all. This narrow conception of negotiation in litigated cases misses critical parts of the dispute resolution process and thus leads to misconceptions about how it really...
Joint Session with a Directed Discussion Format
October 28, 2015
Mediators have their favorite topics to debate when they get together. An important one is whether or not to have a joint session. I share the prejudice of most mediators that opening statements constructed by counsel to present their positions to the other side (like being in court) are fraught with danger and risk being counterproductive. However, my view is that a joint session is valuable if properly utilized. Confidentiality and the inability to share important information is another concern...
October 28, 2015
Mediators have their favorite topics to debate when they get together. An important one is whether or not to have a joint session. I share the prejudice of most mediators that opening statements constructed by counsel to present their positions to the other side (like being in court) are fraught with danger and risk being counterproductive. However, my view is that a joint session is valuable if properly utilized. Confidentiality and the inability to share important information is another concern...
Don’t Worry, Law Firms, Your Clients Still Want You
October 27, 2015
Law firms have been hearing for years about the shifting power dynamic within the legal community—one that has given in-house law departments the upper hand. But two new surveys of in-house lawyers indicate law firms may be regaining some lost ground. The Association of Corporate Counsel interviewed more than 5,000 in-house lawyers around the world earlier this year to get their views on hiring, life in corporations, and their biggest legal challenges. The results, released this week, show...
October 27, 2015
Law firms have been hearing for years about the shifting power dynamic within the legal community—one that has given in-house law departments the upper hand. But two new surveys of in-house lawyers indicate law firms may be regaining some lost ground. The Association of Corporate Counsel interviewed more than 5,000 in-house lawyers around the world earlier this year to get their views on hiring, life in corporations, and their biggest legal challenges. The results, released this week, show...
Law on the Market? Evaluating the Securities Market Impact of Supreme Court Decisions
October 27, 2015
Do judicial decisions affect the securities markets in discernible and perhaps predictable ways? In other words, is there “law on the market” (LOTM)? This is a question that has been raised by commentators, but answered by very few in a systematic and financially rigorous manner. Using intraday data and a multiday event window, this large scale event study seeks to determine the existence, frequency and magnitude of equity market impacts flowing from Supreme Court decisions. We demonstrate...
October 27, 2015
Do judicial decisions affect the securities markets in discernible and perhaps predictable ways? In other words, is there “law on the market” (LOTM)? This is a question that has been raised by commentators, but answered by very few in a systematic and financially rigorous manner. Using intraday data and a multiday event window, this large scale event study seeks to determine the existence, frequency and magnitude of equity market impacts flowing from Supreme Court decisions. We demonstrate...
Information Gathering Through Worksheets in Multi-Party Construction Mediations
October 27, 2015
Most mediators learn early in their practices that we never know as much about the case as the counsel do. The lawyer will always understand more about the risk aversion of the client because of fear of the courtroom, fear of the result, or the balance of opportunity and risk. The mediator will not have seen the witnesses, and can’t evaluate from a cold transcript the nonverbal disclosures that were observed by counsel. In construction cases where the parties have ongoing business relationships...
October 27, 2015
Most mediators learn early in their practices that we never know as much about the case as the counsel do. The lawyer will always understand more about the risk aversion of the client because of fear of the courtroom, fear of the result, or the balance of opportunity and risk. The mediator will not have seen the witnesses, and can’t evaluate from a cold transcript the nonverbal disclosures that were observed by counsel. In construction cases where the parties have ongoing business relationships...
Article On Trust Arbitration Clauses
October 26, 2015
Matthew Conaglen (University of Sydney Faculty of Law) recently published an article entitled, Trust Arbitration Clauses,...
October 26, 2015
Matthew Conaglen (University of Sydney Faculty of Law) recently published an article entitled, Trust Arbitration Clauses,...
Variations in the Uptake of and Resistance to Mediation Outside of the United States
October 26, 2015
The use of mediation in private and public disputes has increased exponentially in recent decades around the world. This book chapter reviews the variations in the uptake of and resistance to mediation (in both court-annexed and private settings) around the world and suggests that there are a variety of structural reasons for variations in the use, promotion and rejection of mediative processes, in both nation-state and international or cross-border settings, including legal system variation, economic...
October 26, 2015
The use of mediation in private and public disputes has increased exponentially in recent decades around the world. This book chapter reviews the variations in the uptake of and resistance to mediation (in both court-annexed and private settings) around the world and suggests that there are a variety of structural reasons for variations in the use, promotion and rejection of mediative processes, in both nation-state and international or cross-border settings, including legal system variation, economic...
Conduct Just the Right Amount of Discovery for Mediation
October 26, 2015
Albert Einstein famously said, “We can’t solve problems by using the same kind of thinking we used when we created them.” And yet many litigators continue to believe that before a legal dispute can be resolved they need to thoroughly review every shred of evidence, including noticing and enduring a series of uncomfortable and expensive depositions from every identifiable potential witness. Quite simply, you don’t need to undertake such thorough discovery before mediation. In modern American...
October 26, 2015
Albert Einstein famously said, “We can’t solve problems by using the same kind of thinking we used when we created them.” And yet many litigators continue to believe that before a legal dispute can be resolved they need to thoroughly review every shred of evidence, including noticing and enduring a series of uncomfortable and expensive depositions from every identifiable potential witness. Quite simply, you don’t need to undertake such thorough discovery before mediation. In modern American...
