Comment by Jack Cooley
J. Anderson Little, an eminently qualified litigator and mediator, has produced a most insightful and useful book, that fills a great void in the current mediation literature. It explores, in great depth, the dynamics of traditional bargaining about money in the context of the mediation of commercial cases. He offers creative ways to respond to advocates’ statements that are very common in mediation such as, “they’re just not here in good faith”; “It’s not the money; it’s the principle”; “I’m not going to bid against myself”; “We’re not going to pay a dime more than the other companies”–and twenty-one more. This book is a gold mine of helpful tips for mediators and advocates alike. it should be a part of every lawyer’s practice-skills library.
Comment by Jay Folberg
University of San Francisco School of Law
This book is a gift to both new and experienced mediators. It is profoundly practical in providing instruction on how to successfully mediate claims for money where the case is about numbers rather than relationships. This is not a book of theory, it is a guide of what to do and say as a mediator to move traditional law suit bargaining toward settlement. Andy Little has the mediation experience to discern patterns of movement that those who have not had thousands of cases would not know and he has the clarity of thought and writing to explain what the rest of us need to know.
Comment by Bernie Mayer
Professor, Werner Institute for Negotiation and Dispute Resolution
Making Money Talk is a valuable contribution to the conflict field. Andy Little correctly identifies the weakness in traditional needs based mediation for quite a wide variety of cases, yet shows how the basic value of a facilitative, client centered, process oriented, communication focused approach is still essential to monetary cases. Plus Making Money Talk is very well written and presented—it is a pleasure to read.
Review by Ann Anderson
Mediator, Former Chair of the NCBA Dispute Resolution Section
Pilot Mountain, NC
“A Summer Read That Will Pay Off”
As I was mediating a case where the parties were many thousands of dollars apart and were saying “ I will not bid against myself, “ and “ the defendant is not here in good faith,” I wished I had finished Andy Little’s book Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes. Little’s book is a practical guide with specific suggestions about how to assist the parties who reach road blocks in mediation. While the reader may have developed solutions for responding to these reactions from parties, Little offers insights and suggestions that novices as well as seasoned mediators and experienced negotiators will find helpful with money mediations.
Little begins the book with a discussion about the first settlement conference in North Carolina under the court-ordered mediated settlement conference, that he conducted, in 1992, Little outlines his frustrations in using the classical mediation model in mediating that civil case, and other civil cases, where the partied are negotiating over money. Little states: “I soon learned that claims for money rarely are resolved with elegant solutions for mutual gain. They are usually settled with prolonged bargaining consisting of numerous rounds of painful concessions.” (p.xii). That statement alone should alert most civil case mediators that this is a book by an author who truly understands money mediations. What Making Money Talk does is put the practical face on theories of mediating cases where a monetary settlement is the main goal, if not the only goal, of the mediation.
One of the most instructive chapters in the book is Chapter 3 which deals with facilitating dollar movement when parties in a private session react negatively to their opponent’s number. Guidance outlines in this chapter about developing a plan for moving through the settlement numbers is a major take away from the book. While numbers communicate information about the settlement, Little observes that ensuring that the numbers communicate the correct information about the settlement range can be an important part of the negotiation plan.
While most of the discussions would be helpful to attorneys, mediators, negotiators and insurance companies, Chapter 6 gives advice that may be more specific to mediators who hear the same objections over and over to numbers presented to them at mediation. Chapter 6 outlines 25 Settlement Conference Clichés and gives transcripts of what a mediator might say to the parties when presented with one of the statements.
The majority of the book is devoted to practical skills; however, Little discusses the various theories and criticisms of mediation. The conclusion Little draws, after discussing the different theories, is that a mediator should use the mediation process that fits the case, whether it be transformative, facilitative or problem-solving.
Making Money Talk is a must read for anyone who negotiates either as a mediator or as an attorney. In fact, I am keeping a copy in my briefcase for those instances when someone presents me with Scenario #14: “But We Don’t Have Any More Room to Move.”
Review by Richard Cassidy
The Vermont Bar Journal
Mediation has become commonplace in the American legal scene. That is true here in Vermont as well. Almost every family law, superior court, and environmental case brought in Vermont is mediated before considered ready for trial. So are most civil cases filed in United States District Court for the District of Vermont. Even criminal prosecutions may soon see the influence of mediation if a pilot project in criminal case mediations recently announced by the American Bar Association proves successful.
As mediation has grown, so has the discussion, literature, and training that surrounds it. Most mediation literature—and perhaps even the development of mediation itself—traces back to Fisher and Ury’s seminal book, Getting to Yes: Negotiating Agreement Without Giving In (1983). Their work highlighted a very useful negotiation technique: the problem-solving model of negotiation. Mediators working within the model encourage parties to a dispute to move away from arguing about their positions and towards a mutual search for resolution based on recognition of the parties’ needs and interests. For many cases, divorce mediation being a prime example, helping the parties to sort out their needs and interests is a base from which agreement becomes attainable.
Fisher and Ury’s perception has changed dispute resolution and the practice of law. As profound as it is, the problem solving model has significant limitations. So does its analogue, so called “transformational mediation.” As Andy Little points out in Making Money Talk, one of these limitations is that these models are simply not appropriate for many disputes. Negotiating the settlement of simple money cases—and personal injury claims and commercial disputes are usually simple money cases—is inherently a traditional, position-based bargaining process.
Lawyers and mediators who think that mediation plays no constructive role in making traditional positional negotiations work would benefit from reading Little’s book. Skilled mediators need to come to the table with the right skills for the nature of each dispute and the disputants before them. Little’s book can help fill out a mediator’s skill set and can help lawyers who advocate in mediations sharpen their own negotiation expertise.
Little goes far beyond describing the usual mediation models. He shows would-be mediators how they can promote straightforward traditional horse-trading by easing the flow of information, encouraging case and risk analysis, and facilitating changes in the parties’ positions. He explains that the tools of the mediator’s trade include strategic and tactical questions, reframing and reflective summary statements, brainstorming to help develop new ideas, observations about the negotiation process, and suggestions for obtaining movement. He explains the idea of the second negotiation: bridging the gap between the party’s best numbers. His experience as well as his theory-based knowledge becomes obvious in the chapter entitled “Responding to Recurring Problems of Movement in Traditional Bargaining: 25 Settlement Conference Clichés.”
Little’s book may not be a substitute for serious, advanced mediation training or for long years of experience as a mediator. But, in my experience, for mediators working to resolve cases pending in civil trial courts, it is by far the best single resource available.
Richard T. Cassidy, Esq., is a principal in the Hoff Curtis law firm in Burlington.He has nearly thirty years experience in civil litigation, and since 1994 has devoted a substantial portion of his practice to work as a mediator. He is a member of the Board of Governors of the American Bar Association, the ABA Dispute Resolution Section, and the VBA ADR Committee.