Originally from:
AAA Handbook on Mediation - 2nd Edition - Electronic
AAA Handbook on Mediation - 2nd Edition - Hardcover
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CHAPTER 20
THE VALUE OF ECONOMIC ANALYSIS IN
PREPARING FOR MEDIATION
Donald R. Philbin, Jr.
I. Introduction
“Why?” the child asks, negotiating a reprieve from eating green
beans in favor of an early dessert. “Because green beans are good for
you,” may have a hollow ring. “Because I said so” may work only to the
extent of the power imbalance. Children want to know how their parents
reach the conclusions that they serve up as positions. They probe for
underlying rationales and interests. Litigants have the same need to
understand how their opponents reach conclusions.
If 98% of filed cases will have negotiated outcomes, preparing to
negotiate or mediate should focus more on underlying rationales than on
positions, and for this the parties need a common vernacular through
which to discuss the rationales that inform their positions.
This chapter discusses economic decision analysis as a tool to assist
practitioners and their clients in preparing to negotiate or mediate. Of
course, an economic analysis is only as good as the legal and factual
Donald R. Philbin, Jr. is an AV-rated attorney-mediator, negotiation consultant and
trainer, and arbitrator based in San Antonio, Texas. He has resolved disputes and crafted
deals for more than 20-years as a commercial litigator, general counsel, and president of
communications and technology-related companies. Don has mediated hundreds of
matters in a wide variety of substantive areas and serves as an arbitrator on several
panels. He is an adjunct professor at the Straus Institute for Dispute Resolution at
Pepperdine Law School, Chair of the ABA Dispute Resolution Section’s Negotiation
Committee, and a member of the ADR Section Council of the State Bar of Texas. Don is
an elected Fellow of the American Academy of Civil Trial Mediators and The
International Academy of Mediators, and is listed in THE BEST LAWYERS IN AMERICA
(Dispute Resolution), TEXAS SUPER LAWYERS, THE BEST LAWYERS IN SAN ANTONIO, and
the BAR REGISTER OF PREEMINENT LAWYERS. Mr. Philbin may be contacted at
don.philbin@ADRtoolbox.com. This chapter is adapted from “The One Minute Manager
Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation,”
which appears in volume 13 of the Harvard Negotiation Law Review.
