On the Internet, Nobody Knows You're a Dog: Negotiating the Settlement of Your IP Dispute
HOW IT STARTS
"They cheated me," said the C.E.O. of a Fortune 500 company.
"They stole my invention [or process, design, employees, product, market, or, customers]."
"They copied, knocked off, lied, misled, withheld, and, denied."
This is how the litigation begins. You can recite it in your sleep because you drafted the complaint, the counter-claim, and, the interrogatories. You prepared the examination, the cross-examination, and the jury instructions.
HOW IT ESCALATES
With each passing day, their wrongful, outrageous behavior and the injustice done to your client grows.
Why?
Because they prove their essential bad character and malicious intent with each litigation thrust and parry. Your conduct is righteous, avenging, and, pure, while theirs only confirms their bad faith. They destroy documents, alter evidence, mislead the Judge, and file pleadings at 5 p.m. the day before three-day weekends.
HOW IT COMES INTO THE JUDGE'S SETTLEMENT CHAMBER OR THE MEDIATION CONFERENCE ROOM
Although no one "takes it personally," by the time you bring your clients to a settlement conference or mediation, they cannot bear the sight of one another.
I have not only been instructed that joint caucuses will not be tolerated, I've been asked to assure that the parties will not lay eyes on one another because the other side's very corporeal existence might so inflame the disputants that the negotiation session will melt down before it has had the chance to begin.
If you are a litigator with at least five or six years of experience representing clients in hotly contested intellectual property litigation of any stripe, you know that I am not exaggerating.
I want you to keep this litigation posture and emotional climate in mind for the next few weeks because all of my posts are going to be based it.
WITH A LITTLE HELP FROM OUR FRIENDS -- ENSURING THE BEST POSSIBLE NEGOTIATION
In the coming weeks, we will be discussing some concepts in the social psychology of conflict that will help you de-esclate the conflict, which will, in turn, help everyone brainstorm and negotiate a deal as effectively and efficiently as possible.
Toward that end, we'll talk about cognitive biases, with a little help from our friend Michael Webster, whose Psychology of Compliance and Due Diligence Law Blog was just last week named one of the ten best legal blogs on the internet.
We'll also rely upon Harvard Business School's Working Knowledge, an invaluable, free resource that will improve every commercial litigator's ability to "cut to the chase" of the business interests that lie at the heart of every great settlement.
Today's post, for instance, in fact the entire series of posts, was inspired by the HBS Working Knowledge Newsletter article -- Why We Aren't as Ethical as We Think - A Temporal Explanation by Max Bazerman (author of the great new negotiation text Negotiation Genuis) and his colleagues Ann E. Tenbrunsel, Kristina A. Diekmann, and Kimberly A. Wade-Benzoni.
Other on-line resources we'll be using to explore this topic include:
Beyond Intractability (this link, for instance, is to our friend Ken Cloke's article on Mediators without Borders, which describes several great techniques for de-escalating conflict).
The Freakonomics Blog, covering, among other things, marketing strategy that often overlaps with negotiation strategy, see e.g. Should Apple Burn its Economics Textbooks here and monetizing the value of spending more time with a loved one here.
Brains on Purpose, our friend Stephanie West Allen's Neuroscience and Conflict Resolution Blog, see e.g. this recent article -- Conflict, Is it All In Your Head?, which appears, along with another cool dozen-plus conflict resolution blogs at Mediate.com's "Featured Blogs" page and Geoff Sharp's 40 Sites in 40 Minutes including Gini Nelson's Engaging Conflicts on such topics as The Ethics of Compromise here and Diane Levin's Online Guide to Mediation on such topics as Is Your Negotiating Style Leaving Value on the Table? here.
Roger Dooley's brilliant Neuromarketing Blog, see e.g. our Negotiation Blog post on Small Talk and the Value of Joint Sessions here.
The Legal Theory Blog, see e.g. Negotiation and Time Perspective.
The Trial Lawyer Resource Center, whenever we need reminding that trial may well be the better alternative to a negotiated resolution, and to avail ourselves of the settlement insights posted there such as Listening During Settlement Negotiations.
Malcolm Gladwell's Blog (the Tipping Point and Blink), see, e.g., this post on why journalists failed to detect the Enron debacle.
The texts on which we usually rely will also be cited to assist you, including
Professor Leigh Thompson's introductory-intermediate guide to negotiation, The Mind and Heart of the Negotiator (2d ed) -- the first chapter is online here.
Lax & Sebenius' essential 3D Negotiation -- excerpt online here.
Bazerman and Malhotra's newest compilation of negotiation advice, with which to earn your own post-graduate negotiation degree, Negotiation Genius.
The American Bar Association's massive compendium of negotiation strategic and tactical advice, The Negotiator's Fieldbook (online chapters include Analyzing Risk by Jeffrey Senger)
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Now, if Tom Schelling only wrote a blog, your list of references would be complete!
I thought, from a theoretical point of view, Schelling discussion of how to solve an apparently intractactable IP lawsuit, in The Manager as Negotiator, was brilliant.