I'm a retired partner of the law firm of Skadden, Arps, Slate, Meagher and Flom LLP.  During my 30 years of active practice with the firm, my primary focus was on representing clients in mergers and acquisitions.  Since retirement, my main professional activity has been in the field of dispute resolution, mainly serving as a mediator and, in a few cases, an arbitrator of commercial disputes.

      My M&A experience was both in the negotiated and contested areas.  I represented corporations such as Dun & Bradstreet in their acquisition programs, and companies such as Neutrogena, E.F. Hutton, and several large regional banks when they were acquired.  In the 1980s, I defended Trans World Airlines Inc. and Federated Department stores against hostile takeovers.  My books, Anatomy of a Merger and The Acquisition Mating Dance, and my numerous articles were widely read; and for 20 years until retirement, I was the founder and chair of New York Law Journal’s Annual Seminar on “Negotiated Acquisitions — Public and Private.”

      My primary activity in the field of negotiated dispute resolution has been acting as a mediator in a number of significant commercial cases.  I've written and lectured extensively in the field of mediation, including the article, “The Neutral Negotiator: Why and How Mediation Can Work to Resolve Dollar Disputes,” which was awarded the 1994 First Prize for Professional Articles by the CPR Institute for Dispute Resolution.

      On the educational front, I taught negotiating as an adjunct professor at Fordham University School of Law for many years, and wrote the book, Smart Negotiating: How to Make Good Deals in the Real World (Simon & Schuster, 1992); served as chairman and participated in numerous professional seminars; and wrote, narrated and dramatized videotapes on negotiating, lawyering and acquisition topics, including a six-hour Practising Law Institute video course entitled “Smart Negotiating for Lawyers (recently reissued by PLI in digital format.)”  I also wrote the following books, Lawyering – A Realistic Approach to Legal Practise; Advise and Invent — The Lawyer as Counselor–Strategist and other Essays; Legal–Ease — Fresh Insights into Lawyering; and Smell Test — Stories and Advice on Lawyering, published by the American Bar Association.

      Since retiring from active practice in 1996, in addition to my dispute resolution activities and the publications noted above, I have also served as an expert witness, conducted seminars on negotiating, and given lectures on such topics as negotiating, mediation, ethics and professionalism.

      Mediation

      I’m a firm believer in the principle that most business disputes should be resolved by the parties rather than by a judge or jury. For business people, litigation is not a logical way to resolve a dispute. In other areas, good executives make rational risk-reward decisions, basing their business judgment on an assessment of the probabilities. By contrast, judges and juries generally have to go all the way for one side or the other, even when the probabilities are more nearly balanced.

      When substantial moneys (or other interests) are at stake, it’s simply too great a risk for companies to entrust their fate to the inscrutability of a judge or to the vagaries of a jury. It’s much better to control one’s own fate, rather than rolling the dice – or, as I’ve taken to saying of late to the executives who are making settlement decisions, “The outcome of this dispute is just too important to your company to outsource.”

      I realize, of course, that some advisors and their principals like to go for broke. My experience, however, is that most business people I’ve encountered over the years have been more concerned with the possibility of a serious adverse result than enthralled with the prospect of a complete victory.

      The problem, however, is that even when business executives and their advisors agree on the desirability of resolving their disputes outside court, it’s often quite difficult for the two sides to reach a compromise agreement. The reasons for this are manifold: often the parties are angry at each other, distrust is rampant, neither side wants to blink, their opening bargaining positions are absurdly wide of the mark, they’re ambivalent about whether or not to settle, and so on. But the biggest difficulty is assessing the litigation alternative against which any proposed settlement has to be measured. What’s the most likely outcome in court, and how likely is it to occur? The problem is that you can never know for sure how the trier of fact will come out (an assessment that the two sides are likely to differ over); and because the judge can’t whack up the dollars at issue somewhere in the broad middle where a settlement has a chance of taking place, the negotiated resolution is bound to be at odds with the all-or-nothing litigation result.

      This is where mediation comes into play – when the disputants are stuck between the rock of litigation and the hard place of unavailing two-party negotiations. A well-handled mediation can cope with many of the problems encountered in settling disputes, and an effective mediator can help the parties find a mutually satisfactory resolution.

      This is the role I like to play – as the mediator, negotiating (from a posture of neutrality) with each of the parties, while acting as an agent of reality to help them arrive at a compromise that both sides can live with. And I’ve enjoyed considerable success in achieving this – although not always, especially in cases where, for whatever reason, one of the parties really doesn’t want to settle but has been pushed involuntarily into mediation by a judge.

      If you’re interested in how I go about this task (which differs from the techniques employed by many other mediators in several respects), I recommend you read my book Anatomy of a Mediation, referred to above, or the articles contained in the Mediation Articles section of this website.

Other Dispute Activities

      From time to time, (although less often than in my mediator’s role), I also serve as an arbitrator. My most notable assignment in this respect was being the single stand-by arbitrator appointed to resolve all issues that might arise under a large multi-year joint venture between two major companies.

      I have also served as an expert witness in several cases, relating primarily to contractual issues and the conduct of counsel in the course of acquisition negotiations.

Other Professional Assignments

      Negotiating has long been my favorite professional activity. My first and best-known book, Anatomy of a Merger – Strategies and Techniques for Negotiating Corporate Acquisitions (see the Books and Videos section of the website) dealt extensively with corporate acquisition negotiations, and for many years thereafter, I chaired an annual professional seminar on the subject. The last book I wrote before retiring, Smart Negotiating – How to Make Good Deals in the Real World, (see the Books and Videos) was published by Simon & Schuster for a general audience; in it, I applied the negotiating skills I’d developed in M&A to a broader canvas for non-lawyers. And a six-hour video I created upon retirement for the Practising Law Institute, Smart Negotiating for Lawyers (see the Books and Videos section of the website), applied the principles of the book to a lawyer’s practice.

      Based on the Smart Negotiating book and video, I’ve developed a one-day negotiating skills program that I conduct for law firms, corporate legal departments, business executives, and other interested groups. The first part of the program consists of my lectures on all aspects of the subject, as well as pertinent video excerpts. I cover both deal-making and dispute resolution, and can emphasize one or the other as desired. Then the attendees are divided up into two-person teams and provided with materials to study and then negotiate a hypothetical problem I’ve concocted. (The problem can be tailored to cutting a deal or resolving a dispute, with more or less legal content depending on the group participating.) I observe the negotiations and then conduct an interactive post-mortem discussion of what I’ve seen and what they’ve experienced. Attendees receive a copy of the Smart Negotiating book and other materials.

      For groups that can’t devote that much time to a seminar, I’ve also developed shorter programs, or sometimes I just present lectures on negotiating. I also give talks on mediation for law firms, corporate counsel departments, and bar associations.

      My book, Smell Test – Stories and Advice on Lawyering, published in 2008 by the American Bar Association, consists of ten fictional short stories about business lawyers – some of whom don’t always play by the rules – together with my commentary on each story. The commentaries direct the reader to pertinent points in the tale, ask whether the reader approves of the lawyer’s conduct and (if not) how the sitiation might better have been handled. Then I present my own views on the particular situation, together with some more general observations on the broader professional issues involved.

      Since the publication of Smell Test, I’ve developed an interactive lecture format that I’ve used with law firms, corporate legal departments and bar association groups. After setting the stage, I summarize the essential facts of several of the fictional situations, elicit responses from audience members on how they would have handled the matter, and then offer my own reactions. The situations I choose are usually of an ethical or professional nature. I find (and the audiences apparently concur) this to be an excellent means of conducting a lively discussion concerning what might otherwise be rather dry professional topics. Each attendee receives a copy of Smell Test and some other pertinent materials I’ve authored in the past.