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


After three decades of negotiating major M&A transactions at Skadden, Arps, Slate, Meagher & Flom LLP, JIM FREUND turned after retirement to mediating large business disputes. This is his tenth book-others include Anatomy of a Merger, Lawyering, Smart Negotiating, and smell Test. Through his books, videos, seminars and classes, he has taught negotiating, problem-solving, and other lawyering/business topics to several generations of lawyers and law students.

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After three decades of negotiating major M&A transactions at Skadden, Arps, Slate, Meagher & Flom LLP, JIM FREUND turned after retirement to mediating large business disputes. This is his tenth book-others include Anatomy of a Merger, Lawyering, Smart Negotiating, and smell Test. Through his books, videos, seminars and classes, he has taught negotiating, problem-solving, and other lawyering/business topics to several generations of lawyers and law students.

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Product Details

  • ISBN-13: 9781402418570
  • Publisher: Practising Law Institute
  • Publication date: 1/16/2013
  • Pages: 400
  • Sales rank: 1,383,991
  • Product dimensions: 5.90 (w) x 9.00 (h) x 0.90 (d)

Meet the Author

Legendary dealmaker James C. Freund is a retired partner of Skadden, Arps (presently of counsel to the firm). During his 30 years of active practice, Mr. Freund’s primary focus was on representing clients in mergers and acquisitions. Since then, his main professional activity has been in the field of dispute resolution, serving as a mediator and, in some cases, an arbitrator of commercial disputes. In addition to 10 books, including Smart Negotiating: How to Make Good Deals in the Real World (Simon & Schuster, 1992) he has written and lectured extensively in the field of mediation. Mr. Freund taught negotiating as an adjunct professor at Fordham University School of Law for many years; served as chairman and participated in numerous professional seminars; and wrote, narrated and dramatized videos on negotiating, lawyering and acquisition topics.

He resides and works in New York City.

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Table of Contents

In a Nutshell 15

The Distinctive Approach 15

The Dollar Dispute 18

Scope of the Book 20

Other Commercial Conflicts 21

Why Mediation? 23

Difficulties Encountered in Mediation 26

The Book Audience 29

A Dealmaker's Frame of Mind 30

Putting in a Good Word for Compromise 34

Part I The Case for Mediation 37

Chapter 1 Why Disputes Should be Settled 39

Chapter 2 Why Resolving Disputes is Such Tough Work 41

Obstacles to Settling 41

The Biggest Difficulty 44

Some Thoughts About Litigators 46

What About Getting to Yes and Smart Negotiating? 50

Chapter 3 Why Mediation Can Work Where Direct Negotiations Fail 53

Chapter 4 About the Mediator 57

The Qualities of a Good Mediator 57

How About the Use of Humor? 59

The Mediator's Approach 60

Chapter 5 The Initial Steps of a Mediation 67

How the Parties Have Come to be Mediating 67

Conflicts, Fees, Scheduling and Lineup 69

The Mediation Agreement 71

Pre-Mediation Submissions and Responses 74

Part II Mediating the Dollar Dispute 79

Chapter 6 The Put Case 81

The Facts 81

Some Mediator Musings 83

Plaintiff and Defendant Variances 87

Pre-Mediation Settlement Negotiations 89

Chapter 7 The Beginning Joint Session 93

Presentations by the Parties 93

The Mediator's Warning Admonition 96

Questions in Joint Session 97

Chapter 8 The Caucus Discussion of the Merits 99

Why Private Caucuses? 99

Gathering Information 101

The Merits Discussion 102

Chapter 9 Developing the Mediator's Strategy 109

Forming a Realistic Expectation 109

Relatively Realistic Parties 114

Put Case Strategy 115

Chapter 10 Dealing with the Parties on the Dollars 119

My Non-Transmittal-of-Offers Technique 119

Dollar Discussions in The Put Case 121

Chapter 11 The Endgame 127

A Break in the Proceedings 127

Resumption of the Proceedings 130

Adding a Creative Element 131

Reflections on the Endgame 133

The Climax of The Put Case 139

Chapter 12 What if…? 143

Four Possible Continuing Relationship

Scenarios 144

Effects on the Mediation 148

Chapter 13 The Art Case 153

The Facts 153

The Merits 155

The Dollars 159

Dealing with Unreality 162

Termination vs. Adjournment 166

Chapter 14 The Mediator's Proposed Resolution 169

How it Works 169

A Suggestion to Parties and Their Counsel 174

The Proposed Resolution 176

Part III Deal-Dispute Mediating 183

Chapter 15 The Contrast with One-Shot Dollar Disputes 185

Chapter 16 The Split-Up Case 189

The Facts 189

Threshold Matters; Categories of Issues 192

Initial Steps; The Open Session 196

Hearing Grievances in Private Caucus 198

Chapter 17 The Mediator at Work 203

Assessing Priorities 203

Determining Which Wrongs Won't Be Righted 205

Carrots and Sticks 209

Requesting Proposals from the Parties 212

The Parties' "Compromise" Positions 214

Chapter 18 The Mediator's Realistic Expectation 219

Developing a Feasible Resolution Model 219

Presenting the Mediator's Split-Up Recommendation 225

Chapter 19 Narrowing the Gaps 229

Shuttling Back and Forth with Parties' Proposals 229

The Role of the Lawyers 234

Progress Slows to a Crawl 239

Chapter 20 Final Steps 241

Preparing a Draft Agreement in Principle 241

Negotiating the Agreement in Principle 246

Going to Contract 248

Part IV Mediating Multi-Party Disputes 251

Chapter 21 Three's a Crowd 253

Some Examples of Multi-Party Negotiating 255

The Case for Settlement 257

Getting the Mediation Started 258

Chapter 22 The Casino Caper 263

The Facts 263

The Opening Rounds 268

Chapter 23 Devising a Strategy 271

Discerning a Tentative Format for Resolution 271

Gaining Valuable Information 274

Marketing the Revised Format 277

Some Reflections on Multi-Party Mediation 284

Chapter 24 Reaching a Resolution 287

A Draft Agreement in Principle (with Holes) 287

The Forward-looking Deal Aspects 288

The Denouement 290

My Proposed Resolution 292

Part V Representing a Party in Mediation 297

Chapter 25 Negotiating-The Mediation Lawyer's Key Attribute 299

The Importance of Negotiating Skills 299

A Note to Deal Lawyers 301

Choosing a Mediator 306

Chapter 26 The Lawyer-Client Relationship 309

The Decision to Mediate 309

Preparing Your Client for the Negotiating to Come 312

Some Thoughts on the Negotiating Process 315

Chapter 27 The Lawyer's Dealings with the Mediator 321

How Not to Do It 322

The Better Way 328

Help! 328

Handling Negative and Positive Leverage 329

Wrapping Up 335

Appendices 343

Appendix A The Mediation Morning Line 345

Appendix B Different Strokes-A Comparison Between Mediating Global Conflicts and Commercial Disputes 353

Appendix C On the National Scene 365

Appendix D My Mediator's Pep Talk to the Parties 369

Endnotes 373

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