“A Dealmaker’s Distinctive Approach to Resolving Dollar Disputes and Other Commercial Conflicts”
James C. Freund, former Skadden, Arps M&A transactional attorney turned mediator, is the author of the engagingly written and interesting new book Anatomy of a Mediation (Practising Law Institute 2012). Mr. Freund’s “anatomy” is a clinical tour, by a very wise guide, through the mediation process.
The book’s subtitle, “A Dealmaker’s Distinctive Approach to Resolving Dollar Disputes and Other Commercial Conflicts,” reveals the author’s perspective. Experienced as a dealmaker, Mr. Freund sees mediation as a negotiation, but it is primarily a negotiation between the mediator and the parties. Unlike many mediators who play shuttle diplomacy, transmitting offers and counter-offers back and forth, Mr. Freund prefers to negotiate with the parties, until he can bring them within the range of magnetic attraction necessary to draw them together to settle their dispute.
Mr. Freund’s approach is “distinctive” because it is his approach, empirically based on his long career spent negotiating favorable outcomes where business interests clash. It is an approach that works for him. His approach is relentlessly evaluative, and assumes a relatively high level of legal and business sophistication among the participants. He is canny, shrewd, pragmatic, and cerebral, but clearly knows when to apply a dose of humor to ease a tense mediation.
Many mediators are not lawyers, many mediations do not involve legal action, and many mediations are not primarily about money. Therefore, Mr. Freund’s distinctive approach will not be for everyone. His wealth of insight will, however, be especially valuable to attorneys, mediators, and parties interested in mediating business disputes where one thing above all is in dispute: money. And as Mr. Freund reiterates throughout his book, “the toughest case to mediate is a pure one-shot dollar dispute – more or less money for each side, nothing else to play with.” The toughest case may also be the most common case Mr. Freund encounters (though by no means the only case considered by Mr. Freund in his book). The one-shot dollar dispute is at some remove from the ideal “getting to yes” situation, where there are plenty of chips to play with, everyone is principled, there are genuine “partners in peace,” and everyone comes out ahead and feeling better.
Anatomy of a Mediation tours a variety of quasi-realistic mediation scenarios categorized as “one-shot dollar disputes”, “deal dispute mediation” involving vital business interests, and “multi-party disputes.” Along the way, our tour guide describes much of the nitty-gritty of mediation: setting up the mediation, presentations by parties, the mediator’s warning admonitions, caucusing, terminating or adjourning, impasse and the mediator’s offer, preparing a settlement agreement, and more.
Mr. Freund is generous with useful advice and insights. For example: “[I]nstead of aiming at the elusive goal of fairness, I preach the gospel of satisfaction.” (p. 74). “[J]ust as I always advise negotiators to give themselves some room to maneuver, I tell myself as mediator to do the same thing.” (p. 116). “[F]or the dollar dispute mediator, a pocket calculator is a more important tool than the rules of evidence!” (p. 118). “[A]s a mediator, I’m generally inclined to treat disputed language as ambiguous. I can’t help thinking – why else would they be here?” (p. 157). “In terms of reality . . . the parties and their lawyers that I encounter are all over the place. Still, I see that as the mediator’s primary (and toughest) task – to bring a sense of reality to the proceedings.” (p. 352).
Four short appendices are well worth the price of admission: (1) an analysis of the likelihood of mediation succeeding, based on the parties’ degree of realism and commitment to settling; (2) a comparison of Dennis Roth’s rules for mediating global conflicts in his book Statecraft with the rules for mediating commercial disputes; (3) the need for compromise on the national political scene (I am curious to know what Mr. Freund thinks of Spielberg’s move Lincoln, and the negotiations and lobbying that led to the 13th amendment abolishing slavery); and, (4) Mr. Freund’s “mediator’s pep talk to the parties.”
The talented illustrator, Joe Azar, deserves credit for clever illustrations that actually manage to track the arguments and analyses in the book.
Finally, I note that Mr. Freund dedicated the book to his mom, “Marcella Freund, who in a few months will turn 105 with faculties intact.” I am certain that Ms. Freund is very proud of her son, and I hope to read more of his books over the next four decades.
Note: Patrick Blier with the Practising Law Institute informs me that readers of the blawg who purchase the book will be provided with a 15% discount.