Mediation Archives - Your Trial Message

Settle Your Case Honestly: Top 4 Ways to Make the Truth Work for You in Negotiations

Case Assessment, Mediation / ken.brodabahm / December 15, 2022

By Dr. Ken Broda Bahm: When the parties in litigation come together to talk about settlement, that might be seen as the “posturing phase.” Each side is trying to convey the strength and unassailability of their case, while predicting an inevitable victory in trial. Some of that might be considered the rational “puffery” that puts […]

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Look Out for the Reptile Mediation

Adapting to Jurors, Mediation / ken.brodabahm / May 30, 2019

By Dr. Ken Broda Bahm: Defense attorneys at this point, should have at least some familiarity with the Reptile approach that the plaintiffs’ bar is using as a route to persuasion. The idea of framing cases based on personal fear and threats to community safety has made significant inroads in medical negligence, products liability, personal

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Recognize the Weakness of ‘Hardball’ Rhetoric

Mediation / ken.brodabahm / September 21, 2017

By Dr. Ken Broda Bahm: In his speech to the UN General Assembly last Tuesday, President Trump issued a pretty blunt threat. If the United States is forced to, he said, “We will have no choice but to totally destroy North Korea.” It was not out of step with his previous rhetoric on the subject, including

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Know (and Use) the Cognitive Biases of Mediation

Bias, Mediation / ken.brodabahm / January 19, 2017

By Dr. Ken Broda Bahm: Most civil cases these days will end, not in a courtroom, but at a settlement table. Many will do so after just the right amount of time and resources invested during discovery to discover the case’s true worth. But for many other cases, that investment of time and resources won’t

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Conduct Discovery on Your Trial Audience

Mediation / ken.brodabahm / February 6, 2014

By Dr. Ken Broda Bahm: Many have noted that the American trial seems to be suffering a kind of death by discovery. “Just the amount of documents and discovery that you have to deal with before you ever get to a trial are so enormous that the costs are higher and it just bogs the process

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Don’t Create Your Own Cliff

Mediation / ken.brodabahm / December 31, 2012

By Dr. Ken Broda Bahm: As the year winds to an end, all the attention is on the “fiscal cliff” and whether there will be a last-minute save or whether, when we “Ring in the New” on January 1st, we will be ringing in large tax increases and drastic cuts to Federal programs. As of

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Consider the Jury’s Political Role

Mediation, Public Perception / ken.brodabahm / December 3, 2012

By Dr. Ken Broda Bahm: Those of us who work in the business of preparing for trial and going to trial are used to seeing the jury as a tool of dispute resolution. We’re less used to thinking about the jury’s broader political role. Apart from the speeches given by judges at the start of

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Negotiate, Mediate (and Testify) Eye to Eye

Mediation, Testifying Effectively / ken.brodabahm / November 26, 2012

By Dr. Ken Broda Bahm: Have you ever seen an argument get somewhat bitter or personal in an online forum or via electronic communication? That is a little like asking, “have you ever visited an online forum or used electronic communication?” When we’re safe behind keyboards, or to a lesser extent, on the telephone, arguments

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Don’t Forget About Happiness: The Settlement Series, Part Four

Mediation, Settlement / ken.brodabahm / June 14, 2012

By Dr. Ken Broda Bahm: If we don’t normally think of “happiness” when we think of mediation, it may be because a good settlement is generally not something that makes all the parties happy. Instead, it is more often something that makes the parties equally unhappy. At the same time the notion of happiness, or

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Know When to Give Your Mediator a Voice: The Settlement Series, Part Three

Case Assessment, Mediation, Settlement / ken.brodabahm / June 11, 2012

By Dr. Ken Broda Bahm: Mediators have a delicate job. They know it isn’t their role to praise or blame a party. It isn’t their role to take sides. To do so means sacrificing their credibility and their effectiveness along with it. But the tougher question is whether a commitment to stick to facilitation, rather

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