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Welcome
Business is about people. Where there are people, there are disputes. Although far too common, lawsuits are the worst way to handle a dispute. After years of litigating high profile cases for major companies, smaller firms and individuals, I have seen first hand that lawsuits rarely benefit either party and almost always spiral into an abyss of wasteful expenses. Fortunately, businesses have options that are far better than litigation: planning for disputes, negotiating effective agreements, and using mediation or arbitration when appropriate. In my book, "The Executive Guide to Managing Disputes," I explain both why litigation is so wasteful -- no, it is not just the fault of the attorneys -- and how to take advantage of the better alternatives.
I am mediator, arbitrator, and attorney based in Pittsburgh with more than 25 years experience. In addition to dispute resolution, my work has focused on commercial disputes, health law, information technology, securities, and antitrust. After graduating from Yale and the University of Chicago Law School, I began my law practice in Los Angeles and later worked for 10 years in Washington, D.C. In addition to my professional practice, I teach at Carnegie Mellon University, Heinz College. My articles have appeared in the National Law Journal, the Pittsburgh Post-Gazette, numerous professional publications.
Please contact me ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 412-246-8777) to talk about your business or disputes. I will gladly share thoughts, answer questions, and provide more information about my consulting (planning, negotiation, and mediation services) and workshops.
Managing Disputes Blog
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BP and Faux Mediation
Written by
Gary L Kaplan
The U.S Government has today again raised the estimate of the amount of oil spilling into the Gulf of Mexico. The estimated rate now stands at 60,000 barrels per day. As of yet, there are no estimates of the cost of the flood of litigation to follow.
Perhaps in an effort to stave off some claims, BP has declared on its website that:
Appointing an Independent Mediator is a recognized practice to strengthen claims processes and resolve disputes. BP is working to appoint the best possible person to fill this important role.
In those cases in which a claimant and BP cannot agree on resolution of a claim, the claimant can seek review from the Independent Mediator. The Independent Mediator then will make an advisory decision on the claim.
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- If the claimant feels the advisory decision is unreasonable, he or she retains all rights under OPA either to seek reimbursement from the Oil Spill Liability Trust Fund or to file a claim in court.
- If BP feels the advisory decision is unreasonable, the company may choose not to accept it, but the claimant then may use the Independent Mediator's decision in claiming against the Oil Spill Liability Trust Fund or in a subsequent court action.
I am, obviously, all in favor of voluntary dispute resolution processes that might reduce some of the litigation costs to come from this catastrophe. But BP's "ADR" plan misses the mark and risks giving mediation undeserved bad name.Mediation, as the term is used by everyone except apparently BP, involves (i) dialogue and negotiation between the parties with the help of an independent and impartial facilitator (or mediator) agreed upon by both parties, (ii) decision-making by the parties themselves, and (iii) confidentiality. A company may provide a list of mediators with whom it is willing to work to facilitate selection and initiation of the mediation, but a unilateral appointment of a supposed "Independent" Mediator does little to instill confidence in the fairness of the process. Further, the goal of mediation is to enable the parties to reach their own agreement on a fair settlement, not to replace their assessments of the disputes with the Mediator's "decision."While BP's plan has nothing to do with mediation, it is akin to non-binding arbitration. Arbitration, again as commonly understood, refers to the appointment of an impartial, independent, and disinterested person (the arbitrator or neutral) to consider the parties' arguments and evidence and then decide the dispute. Again, however, a critical hallmark of, and requirement for, fairness of arbitration is the parties ability to jointly decide on who will serve as the "neutral" or arbitrator.Finally, BPs offer of an incentive to participate in its process--the right to use the "Independent Mediator's" decision in claim in subsequent lititgation--may not be of great benefit to the claimants. Over the past twenty years, research on negotiations has shown that numbers are, in a sense, "sticky"--once a number has been thrown out, the number ultimately agreed upon by the parties will gravite to that number. If the matter ends upon in court, the "Independent" Mediator's decision will likely stand somewhere between BP's proposal and the claimant's demand. If introduced into evidence, whlle it might imply that BP has been unreasonable, it might do the same to the claimant. In the end, I suspect such decisions would work to moderate any payouts.Perhaps I'm being too cynical, but there is little doubt that BP knows the differences between mediation, arbitration, and what it has offered. Using the term "mediation" for this process strikes me as being more about marketing than substance, and ultimately may serve only to further undermine BP's credibility.
Written on Tuesday, 15 June 2010 17:17
Tags: General ADR Mediation Arbitration Litigation Settlements Negotiation Dispute Management Systems Be the first to comment! Read 286 times Read more...
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Ten Tips for Better Negotations
Written by
Gary L Kaplan
Are you a good negotiator? Almost all of you probably think so. Half of you are wrong. The business world is not Garrison Keillor’s Lake Wobegon (where “all of the children are above average”). Regardless of your skill level, you can improve.
The big challenge, though, is how to negotiate. And how to negotiate better. Research over the past 25 years sheds lights on what works in negotiating, and leveraging such research, here are some of the most important tips to becoming a better negotiator:
1. Be Prepared
If the three rules of real estate are “location, location, location,” the three rules of negotiation are “preparation, preparation, preparation.” Before starting a negotiation, you need to know what you want out of the deal and your bottom line. You also need to try to figure out the other side's bottom line and objectives. As you prepare, you should write it all down. Negotiators who start with written goals do better.
2. Set the Table and Start with Appetizers
A successful deal may depend on having the right setting, the right people at the table, and the right order of items on the menu. In most cases, it is better to start with easy issues, because you want to get the other side comfortable saying yes.
3. Leave Room
The worst feeling in the world is to have your first proposal accepted (and you won't be doing the other side a favor accepting his or her first proposal either).
4. Be Generous (with free stuff)
We are all hard-wired to reciprocate. The fastest way to get concessions is to give them. Look for things of value to the other side that don’t cost you much, if anything. The instinct to reciprocate should not be underestimated. Besides, people are more likely to be persuaded by someone they like, than someone they don’t.
5. Be Creative
Effective negotiation is not only about getting the biggest piece of the pie, it is also about looking for ways to make the pie bigger for both sides.
6. Be a Good Listener
Ask questions, and spend more time listening than talking. You might find that stuff you want is not important to the other side and vice versa.
7. Make it Easy for Your Opponent
No one likes to lose. Making your opponent feel bad or look bad is unlikely to win you much, but may poison your business relationship or even kill a good deal.
8. Be Sincere
Nothing will work if you don't mean it. In addition to being unethical, if you start to lie, you will need additional lies to cover the first one and so on. Eventually, your brain will overload and turn you in. (Brain imaging studies show that your brain needs to work much harder to lie and than to tell the truth).
9. Be Patient
Effective negotiations take time. If you try to short-cut the process, you are likely only to give up more (or get less) than you would with some patience.
10. Don't Be Afraid to Ask for Help
Our emotions often blind us to facts and reasonable options. It always helps to have a sounding board. Negotiation can be stressful, but they don't need to be. Many attorneys and experienced negotiators (myself included) will gladly take the time to talk with you about a negotiation that may be important to your business simply to build good will. Sometimes it just takes a quick phone call to talk about strategy or get a reality check.
Written on Tuesday, 04 May 2010 23:10
Tags: Negotiation Be the first to comment! Read 278 times Read more...
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PA AG's Participation in Frivolous Lawsuit Challenging Health Care Reform
Written by
Gary L Kaplan
My Op-Ed on Pennsylvania Attorney General Tom Corbett's participation in the frivolous constitutional challenge to health care reform is in today's Pittsburgh Post-Gazette. Corbett is running for governer and his sole proposal for addressing the problems in health has been a vague reference to malpractice reform on his website. His concern over frivolous lawsuits though, apparently does not extend to his use of public funds to garner rightest support for his campaign.
As I noted in the piece, Charles Fried, former solicitor general for President Ronald Reagan and Harvard professor, has called the case "truly silly" and suggested that its proponents are "deeply ignorant or just grandstanding in a preposterous way." The article explains why the 3 claims in the case are baseless.
Written on Wednesday, 07 April 2010 09:28
Tags: General Health Law Litigation Legislation and Reform Pennsylvania Law Be the first to comment! Read 393 times Read more...
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The Board of Directors' Role in Dispute Management
Written by
Gary L Kaplan
I have an article in this month's Directors & Boards, E-Briefing. The article discusses the benefits of ADR for business and how Directors can facilitate adoption of efficient dispute management programs.
Written on Tuesday, 06 April 2010 16:51
Tags: General ADR Dispute Management Systems Be the first to comment! Read 854 times Read more...

Of Note
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Interview on Issues Today Radio
I was interviewed on a syndicated radio show, Issues Today, about the benefits of mediation. Here is the link.
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Op Ed on Health Reform
in the Pittsburgh Post Gazette.
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A nice little quote in the Pittsburgh Trib today
In article by Mike Cronin on independent hospitals in Western PA.
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StartUp Nation Podcast
Recently, I was interviewed for a Podcast by Startup Nation (a website for entrepeneurs) discussing how small and startup businesses can avoid or reduce litigation costs. StartUp Nation, The podcast is now available on iTunes and here. Check it out!
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Jewish Chronicle
My op-ed on health reform appeared in the Pittsburgh Jewish Chronicle on December 31, 2009. Here's the link.
