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December 21, 2006

Boras and Matsuzaka vs. the Red Sox

Being a baseball fan, a former resident of Japan, and a student of ADR, I followed the negotiations between Japanese pitcher Daisuke Matsuzaka (and his agent, Scott Boras) and the Boston Red Sox with interest. 

To review: The team with which Mr. Matsuzaka is under contract in Japan, the Seibu Lions, "posted" him.  This allowed major league baseball teams in the US to submit bids (a "posting fee") to Seibu for the right to negotiate with Mr. Matsuzaka.  The highest bidder received exclusive negotiating rights -- if the team and Mr. Matsuzaka reached an agreement, Mr. Matsuzaka would pitch for the team and Seibu would get to keep the posting fee.  If no agreement was reached, Mr. Matsuzaka would continue to pitch for Seibu, and the US team's posting fee would be returned to them.

As you can probably tell from the above, the posting process is a screwy one.  Seibu wanted Mr. Matsuzaka to leave, and wanted the posting fee, but had no involvement in Mr. Matsuzaka's negotiation with the Red Sox.

Boston wound up with the highest posting fee: a little more than $51 million.  Then the real negotiation began.  What did everyone want?

Mr. Matsuzaka apparently wanted -- badly -- to pitch in the US. 

Mr. Boras wanted what his client wanted.  To maximize Mr. Matsuzaka's salary (and, as a result, his commission)?  Of course.  To get Mr. Matsuzaka into the US to play ball?  Of course.  Mr. Boras may have also wanted to try and overturn the posting system, although this is questionable; if it is the case, there's a potential conflict of interest involved.

Boston wanted to sign Mr. Matsuzaka while minimizing his salary.

Boston had the upper hand in these negotiations, for two reasons:

(1) It was widely known that Mr. Matsuzaka wanted to pitch in the US.  It may be that Mr. Matsuzaka had no "BATNA" (Best Alternative to a Negotiated Agreement), other than returning to Japan.  And I've read some commentary suggesting that, in Japan, this would be considered a shameful thing.

(2) Boston had a secondary goal: keeping Mr. Matsuzaka away from its main rival, the New York Yankees.  Boston's high posting fee pretty much guaranteed that would happen, since Boston would either sign him or Mr. Matsuzaka would return to Japan.  The only way the Yankees might have a crack at Mr. Matsuzaka would be if the Red Sox didn't reach an agreement and were found by the commissioner of MLB to have been bargaining in bad faith.  In that case, the team with the second-highest posting fee might be allowed to negotiate with Mr. Matsuzaka.  (It's unclear who this second team might be, although it was rumored to be the Mets.)

After lots of drama (which is to be expected, given that the Red Sox and Mr. Boras were involved), an agreement was reached.  One of the interesting parts of the negotiation involved the question of whether Seibu could "kick back" a portion of the posting fee to Mr. Matsuzaka and/or the Red Sox.  The answer is "no."

Finally, one ridiculous thing I read in the wake of the agreement was that Mr. Boras had somehow "lost" the negotiation.  Days before the agreement was reached, rumors circulated that Boston had offered a 6 year, $48 million contract while Mr. Boras countered at 6 years, $66 million.  Some folks have taken the final number (6 years, $52 million) as proof that Mr. Boras failed.  But given his client's wishes, I disagree.  Mr. Boras represents his client, and if his client wants to reach an agreement, Mr. Boras must help him to do so.  And that's just what he did.

September 20, 2006

Does one of the M's stand for mediation?

According to this note at imdb, Marshall Mathers (aka "Eminem") and his on-again, off-again wife Kimberly will have their divorce handled by a mediator in Macomb County, Michigan.  This nice article (from something called Selfhelp Magazine) gives 10 reasons why mediation in divorce might be a good idea.  Number 9 ("It's confidential") is probably of utmost importance to Mr. Mathers.

July 26, 2006

The Value of "I'm Sorry"

When I was going through mediator training in January, one of my classmates talked about a group called Sorry Works!  The idea is that an honest apology by someone (like a doctor) who made a mistake can often prevent the filing of a lawsuit.  The apology would also include a full disclosure of what went wrong and an offer to settle the matter, which is why it's often referred to as "full disclosure/early offer."  Illinois recently set up a pilot program to see if this approach really works.  This article gives a good overview, along with some intriguing figures from the University of Michigan Health System, which started taking the "full disclosure/early offer" approach in 2002:

In August 2001, there were 262 total claims, ranging from presuit notices to active litigation; in August 2002, there were 220 total claims; 193 claims in August 2003; 155 claims in August 2004; 114 claims in August 2005; and since that time, the total number of claims has fallen to fewer than 100, Boothman said.

Within the same period, the university has cut its average claim-processing period from 20.3 months to 9.5 months, halving its average litigation costs. Also, its total reserves on medical malpractice claims dropped by more than two-thirds, he testified.

July 25, 2006

Deposition Smackdown

Andrew Sullivan provides this link to a legal deposition that has gone off the rails.  As Mr. Sullivan notes, the language gets a little raw.

I wonder how much more civil and efficient the legal process would become if parties and their attorneys assumed that all of their interactions would be videotaped and posted on YouTube.

June 26, 2006

ADR Blogs

Diane Levin just sent me an e-mail letting me know that her excellent directory of alternative dispute resolution (ADR) blogs has a new url -- it's now at www.adrblogs.com.  I highly recommend it -- and not just because this blog is listed there as an "ADR-Friendly Blog"!

May 10, 2006

Rosa Parks Probate Dispute to Mediation

I've blogged about the Rosa Parks guardianship and probate litigation on a number of occasions, most recently here.    According to this story, the parties have agreed to mediation of the dispute -- that's good news.  Unfortunately, the mediator is retired Judge Adam Shakoor, who is one of Mrs. Parks' executors and is accused of acting inappropriately with respect to Mrs. Parks' affairs during her life.  One of the attorneys for Mrs. Parks' heirs says that he believes Judge Shakoor "will be fair" -- if that's the case, then why does this dispute even exist in the first place?

May 08, 2006

The Office on "Conflict Resolution"

As I noted here, last week's episode of The Office focused on conflict resolution.  Here's a partial transcript of a scene that should be near and dear to any ADR professional.  The participants are Michael (the office manager) and two employees in the accounting department, Angela and Oscar, who are fighting over whether Angela should be able to display her poster of babies -- in diapers, hats and sunglasses -- playing saxophones.  (I wish I could find a picture of the poster, but I can't seem to locate one online).

Michael holds a 3-ring binder with the title "A Mediators Toolchest."

Michael: "A Mediators Toolchest." OK.  Well, before we get started, you should know that there are five different styles of conflict.  [In kung fu-ish voice] My Shaolin Temple Style defeats your Monkey Style.

Angela: Can we go? I have a lot of work to do.

Michael: No. This is important.  OK.  The first style is lose-lose.

Oscar: What's the next one?

Michael: Just hold... on... please.  OK.  If we do lose-lose, neither of you gets what you want.  Do you understand? You would both... lose.  Now I need to ask you -- do you want to pursue a lose-lose negotiation?

Angela: Can we just skip to whatever number five is?  Win-win or whatever?

Michael: Win-win is number four, and number five is win-win-win.  The important difference here is, with win-win-win, we ALL win.  Me too.  I win for having successfully mediated a conflict at work.

Michael, Angela, Oscar, and Pam (the office receptionist) then go to look at the offending poster.

Michael: Let's see if we can't just brainstorm and find some creative alternatives that are win-win.

Pam: win.

Michael: Yes.  Thank you, Pam.  How about Angela makes the poster into a t-shirt which Oscar wears.  That way he can never see it and whenever she looks at Oscar, she CAN see it.  Win-win-win.

Oscar: No.

Angela: That's -- no.

Michael: OK. Well, brainstorm.  Own the solution.

Angela: How about I leave it up?

Oscar: How about she takes it down?

Pam: How about Angela can keep it up on Tuesdays and Thursdays?

Michael: OK, that is called a compromise and it is style three.  And it is not ideal.  To sum up --

win-win: make the poster into a t-shirt
win-lose: take the poster down
compromise: Tuesdays and Thursdays

and the answer is [holding his head like he is deep in thought] ... make the poster into a t-shirt.  Win-win.

Pam: win.

Oscar: Fine.

Angela: But...

Michael: It is done.

This is a pretty funny scene (maybe funnier on TV than on paper), but it also contains a lesson for mediators about what NOT to do.  Michael as mediator injects himself into the mediation twice, first by insisting on win-win-win negotiation (where he also gains something), and then by switching his role from mediator to arbitrator, and announcing his solution to the conflict. 

April 29, 2006

"The Office" and Conflict Resolution

In this viewer's opinion, "The Office" has grown from modest beginnings to become the funniest show on television.  This week's episode sounds like a good one -- here's the writeup from tv.com:

When Michael takes over conflict resolution duties from HR, chaos ensues at Dunder Mifflin.               

Somehow I think Michael Scott (Steve Carell's character) is going to provide lots of tips on what NOT to do in resolving conflicts.

April 06, 2006

Take Your Adversary to Lunch

Yesterday I received an invitation to an interesting luncheon being sponsored by the Chicago Bar Association.  The concept, "Take Your Adversary To Lunch," is based on a line in Shakespeare's The Taming of the Shrew ("and do as adversaries do in law, strive mightily, but eat and drink as friends").  The luncheon's focus is to "encourage lawyers to share a meal with an adversary - someone who they have opposed in the past or are currently opposing in a legal matter."

This idea makes sense from a couple of perspectives.  To begin with, I think attorneys (and the public) need to move beyond the often ridiculous notion that representing your client well means you have to act with incivility toward the other side.  You don't, and in some (many?) cases clients are ill-served when their attorneys behave badly.  To me, that's one of the points of alternative dispute resolution.

I've also been reading a lot about the increasing number of attorneys who become depressed about their line of work.  My pet theory is that acting -- or feeling required to act -- in an uncivil manner can take a real toll on your psyche.

A blurb about the event, with information on how to register, can be found on this page (it's about half-way down the page, under "Special Events").

March 07, 2006

Mediation in Estate Planning and Probate: A Survey (Part 3 - Court Links)

I'm compiling a survey of estate planning and probate-related mediation resources (mostly of the on-line variety), and will be posting the results here in the near future.  Here's my plan for this survey:

Part 1 (here): Articles about estate planning and probate-related mediation (if an article is available on-line, you can click on the word "link" following the article citation to access it)

Part 2 (here): Links to court probate mediation programs

Part 3 (today): Links to websites that relate to probate mediation

I view all of these parts as works in progress -- I'll be supplementing the lists as new items come to my attention.  If you think I'm missing a link, please let me know!

The Center for Resolution of Disputes - probate page (Cincinnati, Ohio)

The Law, Mediation and Arbitration Offices of Gerald F. Gerstenfeld (Encino, California attorney and mediator with a focus on estate planning, trusts and probate)

Gromala Mediation Service (Eureka, California mediator with a focus on estate planning and probate disputes)

Valerie J. Merritt, Attorney at Law (Pasadena, California attorney offering probate mediation services)

National Conflict Resolution Center - probate mediation page (San Diego, California)

Semmelman & Semmelman (Lake Forest, Illinois law firm offering probate mediation services)