Negotiation Law Blog

(image from Wikimedia Commons:  the Power of Free Content Media)

When you've got several to hundreds of bargaining partners, there is always a moment where the optimal negotiating move is to cut separate deals with those who are weaker (less well-equipped to continue the battle); stronger (better equipped to take a negotiating loss); more favorably disposed to your position or less fixed in their bargaining posture than other members of the opposition coalition.

No one wants to be the last man standing.

In this town of hyphenates (actor-producer-director) it makes sense for the embattled WGA  to cut separate deals with those whose hyphenated descriptions include the word "writer."  So it is that Forbes.com reports via Reuters in Striking writers union reaches deal with Letterman -- and the New York Times reports in Letterman and Writers Guild Reach Agreement -- that Letterman's "writer-friendly" company gave the writers "what they are asking for [because] they deserve it, and we’re happy to give it to them.”  (quote from NYT)

Forbes.com excerpt below:

Negotiations between the WGA and major studios on a new contract covering 10,500 striking film and TV writers broke down Dec. 7, but the union has been pursuing separate talks with smaller, independent production companies.

The WGA's Hermanson told Reuters that talks between the union and Letterman's company had produced a "full, binding, independent agreement" that includes provisions for paying writers for work distributed over the Internet.

Compensation for Internet content has been the main sticking point in talks aimed at ending the WGA strike, now in its eighth week.

Several other late-night television hosts, including Jay Leno and Conan O'Brien of NBC and Jimmy Kimmel of ABC, are planning to resume broadcasts of new episodes on Jan. 2 without their writers. 

(Tony Karp's photo:  DMZ 1964 from the Techno-Impressionist Journal) 

Hear All About the Greening of the Korean DMZ with Doug Noll and Hal Healy at 11:00 a.m. (PST) on New Year's Eve Day . 

I've been working a little over the holidays.  You know, the work I got my ticket punched for in 1980; and, for all the complaining you hear from lawyers, the work that is by far the easiest (read:  most certain) way to make a living of them all:  practicing law.

Don't worry, legal practice will never again be my day job.  Still, I'd been seriously thinking . . . . what have I been thinking for the past three years????  I LOVE this legal research treasure hunt and the war-game strategizing that goes along with it.  And it pays by the hour, not just the time I spend "on stage."

To answer that question this morning, a power greater than me -- things as they are *-- delivered this into my mailbox.

The Korean De-Militarized Zone splits North and South Korea by a band of land that has been untouched by humankind for 53 years. During that time, nature has restored the DMZ to a pristine state of wilderness and has seen the resurgence of many endangered plant and animal species. What would happen if the DMZ were transformed from a symbol of war and strife to one of peace, sustainability, and ecological preservation? More importantly, what if preservation of the DMZ as a national park becomes part of the common ground that can resolve the many differences between the two Koreas? Hall Healy, vice-president of the DMZ Forum, has dedicated himself to making the Korean DMZ a symbol of hope, peace, and environmental beauty. Join us in a conversation about an amazing unsung project that could finally bring peace to the Korean Peninsula. 

_____________________

*  My dad, never one of my major spiritual guides, taught me this when I was in middle school:  "Things as they are giveth and things as they are taketh away, blessed be things as they are."  Thanks Dad! 

(In the face of global violence and inhumanity, it is easy to think: We are so few, so imperfect, and so poorly prepared, while the problems we face are so vast, multifaceted and ingrained - how could we possibly make a difference? The real question however is: How can we stand by and not try to help, no matter how imperfect our efforts may be? ~ Leonard Marlowe)

This semi-secular Christmas post will address a few  matters we're not supposed to discuss in "polite" conversation -- like politics.  Having the freedom to discuss what is truly important to me is one of the reasons I blog; one of the reasons I went to law school; and, one of the reasons I find mediation more suited to my personality and politics than legal practice. 

In case no one's noticed, this blog is dedicated to the non-violent, collaborative resolution of disputes.  To some, this makes me and my blog naive.  Others see an old lefty who, in late middle-age, has accomodated herself to liberal democratic political causes.    

Though I have acted politically in the past (the anti-Viet Nam War and Women's movements) and donate to the expected list of  politcally liberal (the ACLU; Amnesty International; Environment California; the Human Rights Campaign) and charitable organizations (the Downtown Women's Center; the Union Rescue Mission; friend Laurel Kaufer's Mississippi Mediation Project; Mediators Beyond Borders) my politics are more personal than intellectual.  In other words, I make a very bad political debater because I quickly run out of "data" to support my political "positions."

How I Got Here

I think I made an unconscious decision early on (perhaps the first time I suggested -- at 5 or 6 years old  -- that my family send a CARE package to hungry children) that my default position was going to be compassion.  Even if that meant I would sometimes be "ripped off."  I thought compassion was worth the price -- though my parents -- who would have been required to pay for a 5-year old's passions did not agree.

Since that time, I have added other default positions that constellate around compassion, including non-violent dispute resolution; cross-cultural understanding (tolerance); international cooperation; civil rights; universal medical care; stewardship of our physical environment; and, a genuine attempt to meet the first of the U.N.'s Millennium Deveopment Goals --to reduce by half the proportion of people living on less than a dollar a day and reduce by half the proportion of people who suffer from hunger.  

What I Hope for All of Us

We live in a cynical age, which is not the age in which I came of age.  I came of age in an era of hope.  I'd like to think we are capable, as a nation, of entering that age again -- one tempered by hard experience, yet willing to risk a renewed commitment to the principles of peace and justice.  

As an election year approaches with (too early) primaries, my Christmas wish is that we recall a time when the future seemed so full of potential that we were willing to wish for harmony, abundance and justice for everyone.  When was that time?  I was just a child, and yet the nation -- half paranoid; half full of optimism -- elected to our highest office a man willing to lead the nation toward goals I simply assumed to be "American."

Here, is an excerpt (see full addresss here) from that man's Innaguaral Address to the nation.  John Kennedy's speech of  January 20, 1961.  

[L]et us begin anew--remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear. But let us never fear to negotiate.

Let both sides explore what problems unite us instead of belaboring those problems which divide us. .  .  .

Let both sides seek to invoke the wonders of science instead of its terrors. Together let us explore the stars, conquer the deserts, eradicate disease, tap the ocean depths and encourage the arts and commerce.

Let both sides unite to heed in all corners of the earth the command of Isaiah--to "undo the heavy burdens . . . (and) let the oppressed go free."

And if a beach-head of cooperation may push back the jungle of suspicion, let both sides join in creating a new endeavor, not a new balance of power, but a new world of law, where the strong are just and the weak secure and the peace preserved.

All this will not be finished in the first one hundred days. Nor will it be finished in the first one thousand days, nor in the life of this Administration, nor even perhaps in our lifetime on this planet. But let us begin.

In your hands, my fellow citizens, more than mine, will rest the final success or failure of our course. Since this country was founded, each generation of Americans has been summoned to give testimony to its national loyalty. The graves of young Americans who answered the call to service surround the globe.

Now the trumpet summons us again-not as a call to bear arms, though arms we need--not as a call to battle, though embattled we are--but a call to bear the burden of a long twilight struggle, year in and year out, "rejoicing in hope, patient in tribulation"--a struggle against the common enemies of man: tyranny, poverty, disease and war itself.

Can we forge against these enemies a grand and global alliance, North and South, East and West, that can assure a more fruitful life for all mankind? Will you join in that historic effort?

In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger. I do not shrink from this responsibility--I welcome it. I do not believe that any of us would exchange places with any other people or any other generation. The energy, the faith, the devotion which we bring to this endeavor will light our country and all who serve it--and the glow from that fire can truly light the world.

And so, my fellow Americans: ask not what your country can do for you--ask what you can do for your country.

My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man.

Finally, whether you are citizens of America or citizens of the world, ask of us here the same high standards of strength and sacrifice which we ask of you. With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help, but knowing that here on earth God's work must truly be our own.

(right $5700 by Andrew Magill)

Thanks to David Rossmiller for posting Maniloff's Top 10 coverage cases of 2007 -- the .pdf of Mealey's Insurance-Palooza - 7th Annual Look At The Year’s Ten Most Significant Coverage Decisions there and here.

There's nothing more important to the settlement of litigation than knowing where the money to settle it can be found.

Claiming that the $4.85 billion Vioxx Settlement improperly "allows [defendant] Merck to dictate the advice a lawyer will offer" to clients, some Vioxx plaintiffs' attorneys have asked the federal judge overseeing the deal to "keep some of their clients outside the settlement while still allowing other clients to accept it."

Under the global settlement agreement reached by lead counsel in New Orleans last month, "if the lawyers want any of their clients to receive money from the settlement, they must recommend the deal to all their clients." 

Those attorneys resisting the requirement are saying not only that the provision "would prevent them from offering the best independent judgment for each client" but that "[a]greeing to the provision might open them to future lawsuits from disgruntled clients."

All quotations above are from Alex Berenson's New York Times article, Some Lawyers Seek Changes in Vioxx Settlement. 

Previous commentary on the ethics of this provision by legal bloggers, including our own thoughts here, can be found at the Legal Ethics Forum here, the Wall Street Journal Law Blog here, FindLaw here; the Mass Tort Litigation Blog here;  Drug and Device Law here (but please don't call them for comment); Texas Lawyer here; and, Pharmalot here.

Have you ever seen such high level free legal advice in your lifetime?  And it's not even redundant.  So, no, Concurring Opinions, I don't think we've saturated the legal blogosphere.  I think everyone is just taking a deep breath to sort through the talent and find their niche.

In the meantime, have we stopped being troubled by the advertisement of pharmaceuticals direct to consumer (image above) as if they were laundry soap? 

While I was studying for my LL.M at the Straus Institute (Pepperdine School of Law) I took a class in "Faith Based" (or Second Track) International Diplomacy from an extraordinary man named Brian Cox.

Because I am, at best, a material-spiritualist -- one who lets the material world lead them to spiritual apprehensions -- I'm afraid I was a thorn in Professor Cox's side.    

Despite the fact that religious faith is at the core of Cox's approach to international conflict resolution, the substance of his course was not at all difficult to reconcile with my own approach to conflict resolution.  In fact, I'd go so far as to say that I would not be the person I am today; nor have the same ability to cross religious and cultural divides, had I not been exposed to Cox's theory and practice.

So it is with great pleasure that I pass along the press release for the upcoming publication of Cox's new book,   Faith-Based Reconciliation -- A Moral Vision That Transforms People and Societies.

Press release below:   

Santa Barbara, CA – November 28, 2007 – As the bridge of hostility between East and West is broken, societies slowly emerge from an oppressive system and savor their first taste of genuine freedom. However, the absence of any compelling moral vision for these societies is preventing them from defining a stable way of life. Author Brian Cox proposes Faith-Based Reconciliation to build bridges across religions for people to realize that shared spiritual values can point the way forward to a more harmonious future.

Written by an experienced practitioner in the field of faith-based diplomacy who has worked in some of the world’s most troubled regions, Faith-Based Reconciliation begins with the premise that moral vision plays a key role in shaping individuals and communities. Its primary message is that the Abrahamic moral vision shared by Jews, Christians and Muslims, which is embodied as faith-based reconciliation, is a fresh approach to intractable identity-based conflict, an alternative to religious extremism, and an ancient paradigm needed for the twenty-first century.

This book focuses on eight core values that comprise a moral vision of faith-based reconciliation: pluralism, inclusion, peacemaking, social justice, forgiveness, healing wounds, sovereignty, and atonement. Each of these represents a principle. However, each forms the foundation for policy and program development that will heal and sustain societies. These eight core values are designed to be kept in dynamic tension with each other. They assume the centrality of relationships whether between two individuals or two nations. They assume a dynamic integration of transcendent faith with politics without imposing a particular sectarian or institutional perspective.

The Abrahamic tradition, moral vision, and mission began as a promise to one person. God promised Abraham that he would be a blessing to all nations and that it would take on the form of tikkun olam—to heal, to repair, and to transform the world. Abraham had the courage to take that first step on a long journey. The baton of faith-based reconciliation has been passed by people of faith from one generation to another.

This book is a must read for today’s policymakers and for political, religious and social leaders who wish to find an effective and innovative approach to ending conflict, whether in the national or international level.

About the Author

Canon Brian Cox is an ordained Episcopal Priest and a trained professional mediator who serves both as a pastor and as a senior official of a Washington, DC-based non-governmental organization devoted to faith-based diplomacy. He has been a pioneer and practitioner in integrating faith and politics in the international context. Over the course of his work in Africa, Asia, Europe, Latin America and the Middle East , he has developed the strategic paradigm of faith-based reconciliation as a fresh approach to identity-based conflict, as an alternative to religious extremism and as a moral vision for societies.

Another reminder of the narrow scope of Evidence Code section 1152's protections has just come come down from California's Second District Court of Appeal in Zhou v. Unisource Worldwide, Inc. here. 

Before discussing the Zhou holding, we remind our readers that in California, at any rate, the differences in protections between mediated settlement communications (absolute protection from disclosure) and non-mediated settlement communications (limited protection) make it imperative that counsel clearly specify, in writing,  whether the settlement conference they are about to attend is a  "mediated" conference -- and hence protected by Evidence Code section 1119 -- or a "non-mediated" conference -- and hence protected only by Evidence Code section 1152.

Federal Practitioners should see the footnote below and read Irvine, California IP attorney Sheila Swaroop's excellent ABTL Newsletter article The Surprising Uses of Prior Settlement Negotiations under FRE 408 here.

Though I'm aware of no case law on the topic, I'll go so far as to say that an attorney's failure to make this distinction will likely be found to fall below the applicable standard of care in the event the client suffers harm as a result.  

The Zhou Holding

Briefly, Plaintiff, who was injured in two separate automobile accidents, sent the insurance carrier an offer to compromise -- which was just barely brought within section 1152's protections -- for Accident No. 2.  During the trial of Accident No. 1, the defense proferred into evidence the settlement offer made for Accident No. 2 to prove the invalidity of the claim arising from Accident No. 1. 

In holding that the trial court erroneously excluded that correspondence from evidence, the Court of Appeal explained:

[I]n this case Zhou’s letters to State Farm regarding his purported injuries
from the March 1, 2004 accident were not offered to disprove the merits of the claim under negotiation, but rather “to show the invalidity of a different claim.” *

The entire case is well worth reading as a refresher if you're about to send a settlement demand, attend an MSC or pursue mediation.

_____________________

*   The Court also cites federal law to the same effect -- Broadcort Capital Corp. v. Summa Medical Corp. (10th Cir. 1992) 972 F.2d 1183, 1194 [federal rule barring admission of evidence relating to settlement discussions does not preclude evidence of settlement of different dispute; “the evidence was not admitted to prove the validity or amount of the ‘claim under negotiation’”]; Towerridge, Inc. v. T.A.O., Inc. (10th Cir. 1997) 111 F.3d 758, 770 [“[r]ule 408 does not require the
exclusion of evidence regarding the settlement of a claim different from the one litigated”].)

If the generation of $7.8 billion in settlement monies for Enron's fleeced investors doesn't give you a deep sense of year-end justice being done, you haven't seen the documentary chronicling the rise and fall of one of the most arrogant corporate economic criminals in American history -- ENRON -- The Smartest Guys in the Room.   (see the trailer here)

These monies were not, however, torn from the entrails of ENRON's corpse nor taken from the pockets of its principals. These funds, as Forbes.com reports in Judge Mulls $7.8B Enron Settlement Plan, "come mostly from such financial institutions as Bank of America, JPMorgan Chase & Co., Citigroup and Canadian Imperial Bank of Commerce," companies that lawsuits allege "worked with Enron [and] participated in the accounting fraud that led to the bankruptcy of the once-mighty energy company."

The Settlement Plan? 

According to the AP article carried by Forbes.com,

Most of the money will be distributed to investors and shareholders who lost money on securities directly issued by Enron or its predecessor companies. A small portion will go to those who got securities from Enron-related entities.

In general, the plan is calculating shares of the settlement fund based on a formula that factors in such things as when a security was bought or sold, the purchase price paid and the type of stock that was bought.

To be eligible for the settlement, investors and shareholders needed to have bought Enron or Enron-related securities between Sept. 9, 1997 and Dec. 2, 2001. 

The Dispute?

With this much money at stake and so much damage done to investors, you can imagine that there is not simply one dispute but many.  

Robert Finkel, for instance, an attorney representing investors who have already won between $60 and $80 million from financial firms in securities suits was quoted as saying

It's our money. . . There should be no commingling of money."

And Stephen Neuwirth, representing another group of investors, has objected that the plan prevents shareholders who received their Enron stock as gifts from filing claims.  

For a copy of the plan and other explanatory materials for Enron Shareholder Class members, click here.

As Jeffrey Gordon over at the Software Licensing Handbook cogently explains in his post on Strategic Thinking, "when faced with a negotiation [it is important to] sit down and ponder your moves."

If you come out guns blazing, the other side is probably going to respond in kind. Which means that you’re setting the stage for an aggressive negotiation and will be fighting for things along the way. On the other hand, too soft, and you’ll give up everything. This is where some of the experts obviously advise differently. One camp says “play stupid” and seek what you can get through self-depreciating behavior. Another camp (pardon the pun, but it’s actually Jim Camp) says that you should always “Start with No” as a way to encourage discussion.

The net result of Strategic Thinking is an ability to not only see what your path could be, but to also see where your opponent is going to move. For if you play a win-win strategy against someone with a win-lose strategy, who do you think is most likely going to lose? If you’ve considered your various options and thought Strategically, you’ll know how to respond.

Strategic Planning:  Negotiation "Style"

Though Gordon talks about planning ones negotiating style ("hard" or "soft") I always lead with a style that is "hard on the terms and soft on the people."  As a matter of negotiation "style" I also

• name my concessions and demand reciprocity
• cooperate until I encounter non-cooperation, at which point I retaliate but forgive quickly when cooperation results  
• take principled negotiation positions, i.e., always give a reason for my bargaining position and always demand the same from my negotiation partner
• make the first offer, having in mind making 3 to 5 concessions to reach my "bottom line" or "reservation price."

I also recognize and attempt to guard against my weaknesses which are:

• impatience; and,
• discomfort when the negotiation appears to be but rarely has actually has reached impasse

Strategic Planning:  Setting Ones Reservation Price; Planning  the Number and Timing of Concessions; and Deciding Which Information Will Be Strategically Deployed 

My own pre-game strategic planning primarily consists of setting my "reservation price" (the number I will not go below); projecting the planned timing and number of concessions; and, deciding on the nature and timing of information disclosures that I believe will enhance my bargaining position.  I also make a decision, in a case like this, whether I wish to aggregate or divide the several items subject of the bargain.

So What Was the Actual Plan?

We were lucky to have both several items to negotiate and several preferences for each negotiated item.  What were they?

1. the television itself;
2. the $100 HD cable;
3. the furniture on which to place the television; and,
4. sales tax, which for reasons I'm not entirely clear about, sales people generally are happy to "cut" as part of any retail purchase.

We decided that I would be the primary negotiator with Mr. Thrifty as my back up. 

I knew there was a lot of "fat" in the furniture.  The purported "retail" price for the "wood veneer" television stand was $598, "reduced" to a "sales" price of $398.  Having checked online prices for this piece if furniture, I knew that at least one online store claimed that its "retail price" was $349 --  $50 more than the Ken Crane's claimed "sale" price and that we could purchase it online for $285, $110 less than the store was offering.  

Though we were unable to obtain comparables for the Toshiba -- tagged at $2598 -- we knew we could buy a comparable Samsung for $2300 over at Fry's Electronics in Burbank. 

Mr. Thrifty and I decided that our reservation price (or bottom line) was $3,000.00 for all of the items listed above, which would be $366 less than "retail."

Although I firmly believe we could have negotiated a deal at that price, we concluded the deal $150 short of our "reservation price."  I'll explain why that happened when we cover time management and perception of power in our final post on negotiating consumer purchases.

 

(photo from Judicate West's home page) 

A terrific holiday party at Judicate West last evening with the best holiday hors d'ouvres of the season, mediator friends and new and old clients.

But that was just the beginning . . . .

 

 

 

. . . . then . . . .

 

 (Day 1 with the Forbes.com Business and Financial Bog  Network:  Sky Bar at the Mondrian Hotel --think Entourage -- the only bill I reached for quickly enough -- and Twisted Sister at the House of Blues on the Sunset Strip) 

(Jay Jay French and Dee Snider Talk with Entertainment Weekly About Twisted's Christmas Album)

 

Mosh Pit (photo of "Dead Fish" concert by Luiz Alberto Fiebig) . . . .

 which makes me  . . . . .

. . . . worry about the "children" getting hurt

AND of course

. . . .potential liability.

 

 

 

Sharon Gitelle, the woman who will make the Forbes.com Business and Financial Network . . . .

ROCKIN' . . . . .

Trust me on this one.

 What all this has to do with negotiating middle age in the next post (along with the promised post on negotiating the flat screen HD TV purchase)

Forbes.com channels AP's report on the recent settlement of the Sprint Nextel securities class action in Judge OKs $57.5M Sprint Stock Settlement. 

This hefty settlement follows recent predictions  that settlement values of securities class actions will decline. 

In its October post Will Settlement Values Decline?, for instance, we learn from the Risk and Governance Blog that at least one analyst (NERA): 

predict[ed] that settlement values may start trending downward after reaching a record high this year. The median settlement during the first six months of this year was $9 million, up from $7 million in both 2006 and 2005, according to NERA.

The NERA researchers base this prediction on recent declines in the median investor loss, which historically has been a “strong predictor” of settlement values. For cases that settled in 2007, the median loss was $381 million, less than the $407 million median loss for cases that were resolved in 2006. This trend is also apparent if one looks at new lawsuit filings. The median investor loss for cases filed in 2007 was $240 million, down from $265 million in 2006 and $340 million in 2005.

These trends are early hints that recent filings might not lead to continued increasing average settlement values in the future, although it is still too early to know which of the recently filed cases will result in settlement as opposed to dismissal,” the NERA researchers explain.

Meanwhile, Forbes reports that that the Court in the Sprint Nextel settlement set aside 27.5 percent, or $15.8 million, for plaintiffs' legal fees, as well as an additional $2.2 million for plaintiff expenses.

For the full Forbes article, click here.

(photo Destiny Calls by Neal Sanche)

Is there any negotiation more frustrating than the one you conduct on the telephone with people who won't give you their last names, have no "authority" to do or say anything that deviates from their script and who you are finally connected to only after enduring the "go ahead, try to choose the right numeral to fit your problem" automated phone system.

I'll include some of these conversations in the series on negotiating the purchase of the flat-screen T.V. 

This post, however, is an emergency act of mercy for anyone who is upgrading their DirecTV non-HD DVR service to either Dish or DirecTV HD-DVR system.

Information Gathering Cut Short

After at least one full hour of searching online, I found this clear, easily understood, linked resource entitled My Dish Network vs Direct TV Experience.  This advice page links to a side-by-side comparison of the HD-TV-DVR "deals" being offered by satellite providers here at the DigitalTVDojo Daily Deal Monitor.   The "Deal Monitor" links to the "secret" web deals that you will not be offered on the telephone or the internet unless you find them. 

But that's not all. 

Gathering Information about the Dish Service

Preface:  After the Dish representative dodged the following question four times, I gave her one last chance, telling her she would lose my potential business unless she answered it.  She didn't.  I called DirecTV for the second time that day.

The question:  will you provide me with a 5 LND dish free with the HD service?

What the question means:  I have no idea.  My rocket scientist neighbor told me that's what I needed.

Back to DirecTV

If you, like us, are existing DirecTV customers, you cannot get the "deal" linked above online.  If you sign in to your account (or create an existing user account) the only "deal" available to you is to pay $299 for a new HD DVR (which you understand you are leasing, not purchasing).

Here's who you have to call to get the same deal being offered to new customers:  The Customer Retention Department.

How do you get there?  Press 0 even though you're not given this option, which may not directly connect you to a human operator, but will lead you to one more quickly than any other means I tried.

How I Got to the Customer Retention Department

I spent a lot of time appealing to DirecTV's "higher value" of customer service and its interest in retaining customers.  I said the words "Dish" alot.  I said, you're not a monopoly and you have the power to lose a customer today.  That sort of thing.

But all this effort bought me was access to the Holy Customer Retention Department. 

So don't bother negotiating your way there.  Just ask to be directly connected.

The Deal the Customer Retention Department Will Give the Existing Customer

(please let me know if you do better -- Thad Employee # U2179 represented to me "as a matter of fact" that this was absoutely the best deal any existing customer could get on an HD-TV DVR upgrade.  I'm hoping no one proves to me that Thad misrepresented the available deals because I'd like to continue to believe that when directly asked this question, my negotiating partner will either say -- I cannot guarantee that -- or tell me the truth.  I'll provide a link for misrepresentations during negotiations and negotiation ethics later).

Here it is: DirecTV will:

1. provide you with an HD-DVR for $199
2. it will install the needed 5 LNB dish
3. though the cost of HD service is an additional $9.99/month, DirecTV will waive that fee for the first year ("that's a $120 value" says Thad)
4. free installation
5. free handling and shipping

That's it.  Happy shopping and thanks to all the selfless TV service bloggers who helped along the way.

 

 

 

 

 

 

(the Toshiba 46LX177 46" REGZA™ Cinema Series® 1080p LCD HDTV with 120Hz refresh rate; our vendor - Ken Crane)

I have long complained that high definition television is the triumph of form over the "content" our 500-plus channels deliver to us. 

Nevertheless, the February 2009 deadline to go digital is, more or less, looming.  Not to mention the fact that today is our first wedding anniversary and the seventh day of Hanukkah.  Christmas is just around the corner.   

That confluence of events provided the rationale, the justification for me and Mr. Thrifty to finally bite the H.D.T.V. bullet and negotiate the purchase of technology that would likely cost us more than each of us paid for our first automobiles.

Before putting your non-bargaining toes in consumer negotiations, you might want to take a peek at the U.K Telegraph article The art of being a winning negotiator, our knowledge of which we owe to Diane Levin at the Online Guide. 

There's not a lot that's new in the Telegraph's report of a five-day Oxford negotiation program for seasoned professionals -- first "identify what you want, what the other side is likely to want, what you can discover from the public media [and then] build relationships with the other party, picking up intelligence which couldn't be gathered in advance such as his personality, mood, style of negotiating, constraints."

What struck me as noteworthy was the article's expressed surprise that people 'at the top of their game' professionally would feel the need for a course in negotiation.  

This is not news to someone like me who realized on my first day of mediation training that I'd been negotiating the settlement of litigation for 25 years as crudely as Cullen, director of the Oxford Programme, said sophisticated business people tend to do. They "negotiat[e] fairly crudely," he said, and "hadn't realised how they could do it so much better."  

As I sit at home today waiting for delivery of the TV at the top of this post, I'm going to take my readers on a step-by-step guide to buying the high-end technological gee-gaw of your choice this holiday season.  Or, because we don't watch television all that much, the mid-market Flat Screen High Definition LCD T.V., with accessories and furniture.  

High-market, mid-market or low-end, one negotiation is as easy or tough as another depending upon your negotiation skills.  And to tell you the absolute truth -- those lawsuits with the least in controversy are generally the most difficult to negotiate.  

But I digress. 

Step No. 1:  Preparation, next.

It wasn't actually John Huston's Treasure of the Sierra Madre, but Mel Brook's Blazing Saddles -- where he parodies the scene above -- in which the bandits famously said "we don't need no stinkin' badges." 

Are we just as confused about the role played by mediation providers?

This is what you hear from litigators:

I don't hire a mediation provider, I hire a mediator.

This is what you hear from mediators:

People don't hire me because I'm on the JAMS or ADR Services or Judicate West panels.  People hire me because they know me.

And yet, we are on ADR provider panels and they do provide us with business just as we provide them with our "book." 

I'm not going to deconstruct the misconceptions here, only to provide you with an excerpt from the address given by Elizabeth Birch transcribed here -- Meditation Providers No Longer Add Value -- courtesy of Geoff Sharp and The Political News You Need to Know. 

 

It provides just a few of the reasons you might want to call my ADR provider, and that of my colleagues Jay McCauley, Michael Young, and John Wagner, at Judicate West, the next time you want to schedule a mediation or arbitration. 

 

 

Administration

Now, here is the nub of the problem. Many of you feel that you don’t need your mediations administered … “I can do that myself. Why should I let a Mediation Provider take some of the mediation money, if I can do it myself?”

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(image:  St. John the Baptist by Br Lawrence Lew O.P.)

Ann McGlynn of the Quad City Times reports on the most recent priest sex abuse settlement Complex matrix to help determine diocese payouts here. 

You'll note that in both of today's settlements, there are non-monetary "justice" terms by which the defendants agree to provide direct means of emotional satisfaction to the injured parties.  

In the priest sex abuse case, the diocese has not only agreed to provide counseling to survivors (non-monetary restitution) but also to "giv[e] survivors a chance to address the parish in which their case of abuse occurred"  (an act of atonement and restorative justice).  That old standby revenge (retributive justice) has also been included in the diocese's settlement -- each parish agreeing to publish the names of all known abusers.    

The University of Colorado settlement includes what a friend of mine calls a "living amends."  As I understand a "living amends," the reptentent party not only makes restitution to the best of his/her ability, but also agrees to take (or refrain from taking) some activities in the future for the purpose of enacting the apology. 

In the Colorado case, the University "agreed to hire an adviser to monitor compliance with federal laws governing equal treatment of women and add a position in the university's Office of Victim Assistance."  That's a "living amends," atonement and restorative justice.

Below, as promised, an excerpt from the Quad Cities report of the priest sex abuse settlement. 

The diocese and its insurance company, Travelers, reached a settlement last week with the committee representing the 156 sex abuse claimants in the diocese bankruptcy. It totals

$37 million.

The settlement includes non-monetary agreements, including the diocese agreeing to provide counseling for all victims, giving survivors a chance to address the parish in which their case of abuse occurred and publishing the names of all known abusers.

And while some Catholic organizations may pay toward the settlement, it also releases all from liability.

Davenport joined four other dioceses — in Tucson, San Diego, Spokane and Portland, Ore. — in filing for bankruptcy. It filed in October 2006 after Michl Uhde of Davenport won a $1.5 million jury verdict for abuse he suffered at the hands of the now-dead Monsignor Thomas Feeney. The diocese was set to go to trial on a second case shortly after it filed for bankruptcy protection.

It has already paid more than $10 million in settlements to 45 victims

(image links to Amazon.com)

We've talked before (here) about Columbia University Professor Charles Tilly's work on reason giving "Why?" (also see Malcolm Gladwell's article on Tilly's work here)

Reading Tilly is one of those events that forever changes the way we look at the world -- in this case -- why we too often seem to be talking past one another.   

The reason Tilly's book is so important to negotiators should be obvious.  As negotiators, we need to persuade, cajole, influence, seduce, tempt, hustle and sell not only the principled basis for our bargaining position, but also why our interests, needs and desires should make a difference to our negotiation partner.

So it is with the Writers' Guild, still on strike one full month after they exchanged keyboards for picket signs and paychecks for craft services at the front gates of Warners, CBS, Paramount and the like.

Recently, we posted the WGA's YouTube ad for the strike, "Why We Fight:  the Writers' Strike" on both our Negotiation and IP ADR Blogs. 

At 3 minutes and 50 seconds, this video is a textbook example of powerfully persuasive techniques that negotiators, litigators and trial attorneys can all use to "win" the negotiation, the oral argument, or the jury verdict.    

TAKE A LOOK AT THE VIDEO NOW

Why We Fight:  Wrapping it Up in the Flag

The video's title "Why We Fight" is taken from a series of seven documentary films made for the U.S. government by the revered director Frank Capra (It's a Wonderful Life, Mr. Smith Goes to Washington).  Capra's documentaries -- all entitled Why We Fight -- were instrumental in gaining and maintaining the support of a wary American public for our participation in the Second Wold War.  The last "good war." 

Before the viewer presses "play" on this video, its producers have already managed to wrap their short documentary up in the American flag -- carried by Capra -- a Hollywood figure more associated with can-do, hard-working, honest American "manhood" than anyone to walk off a Hollywood movie set since Ronald Reagan first strolled into public life.  

Back to Tilly and the Documentary's "Reason Giving"    

Although the Writers Guild of America is apparently still winning the PR war with the Alliance of Motion Picture and Television Producers, opinion can swifty shift as related businesses begin to feel the ill-effects of an entire industry at stand-still.  This little video should stand them in good stead for quite some time and Tilly can tell us why.

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Thanks to the National Law Journal's Los Angeles Legal Pad for posting this short video "Why We Strike."

A post explaining the reason the reasons given here feel pretty darn persuasive next.

And, by the way, we're really happy to see theL.A. Legal Pad becoming much more substantive a legal news source than it originally was. 

We're pretty certain we have Jason Siegel to thank for this improvement in content and thank him we do!

We're looking forward to watching it grow!

negotiate

+ procrastinate

+ writer's block

+ stumble upon

EQUALS 

From The Big Bang to Today: timeline of evolution; a chronicle of the universe, the solar system, and the development of life on Earth.

(REALLY TOTALLY COOL)

negotiate

INTRANSITIVE VERB: To confer with another or others in order to come to terms or reach an agreement: “It is difficult to negotiate where neither will trust” (Samuel Johnson).

TRANSITIVE VERB: 1. To arrange or settle by discussion and mutual agreement: negotiate a contract. 2a. To transfer title to or ownership of (a promissory note, for example) to another party by delivery or by delivery and endorsement in return for value received. b. To sell or discount (assets or securities, for example). 3a. To succeed in going over or coping with: negotiate a sharp curve. b. To succeed in accomplishing or managing: negotiate a difficult musical passage.

ETYMOLOGY: Latin negtir, negtit-, to transact business, from negtium, business : neg-, not; see ne in Appendix I + tium, leisure.

procrastinate 

INTRANSITIVE VERB: To put off doing something, especially out of habitual carelessness or laziness.

TRANSITIVE VERB: To postpone or delay needlessly.

ETYMOLOGY: Latin prcrstinre, prcrstint- : pr-, forward; see pro–1 + crstinus, of tomorrow (from crs, tomorrow).

writer's block

NOUN: A usually temporary psychological inability to begin or continue work on a piece of writing.

stumble

INTRANSITIVE VERB: 1a. To miss one's step in walking or running; trip and almost fall. b. To proceed unsteadily or falteringly; flounder. See synonyms at blunder. c. To act or speak falteringly or clumsily. 2. To make a mistake; blunder. 3. To fall into evil ways; err. 4. To come upon accidentally or unexpectedly: “The urge to wider voyages . . . caused men to stumble upon New America” (Kenneth Cragg).

TRANSITIVE VERB: To cause to stumble.

NOUN: 1. The act of stumbling. 2. A mistake or blunder.

ETYMOLOGY: Middle English stumblen, probably of Scandinavian origin; akin to Old Norse stumra.