Negotiating with PL Travers – the Walt Disney Way

Am I talking to the wrong person?
You do need to know your negotiating partner.

Mary Poppins silhouette

Enjoying a guilty pleasure over this July 4th weekend, I watched a Netflix-delivered DVD of Saving Mr. Banks. It is the 2013 behind-the-scene story of Walt Disney’s effort to get the rights to make a movie of the beloved children’s book, Mary Poppins. Mr. Disney, it seems, had promised his daughters he would make the movie, but the author, P.L. Travers (played by a dour Emma Thompson), resisted Mr. Disney’s chirpy importuning for twenty years. When she found herself in need of money, she accepted a trip to Los Angeles to allow him to try to convince her. He launched a two-week charm offensive with the help of talented songwriters. But Mrs. Travers, as she insisted on being called, would have none of it. She said she did not want her beloved umbrella-toting character Disneyfied. So, essentially, the entire film is about a negotiation.

At the end of the trip, when Mrs. Travers storms off back to England, a key negotiating insight occurs. Mr. Disney is told that she is not English but Australian and that her family name is Goff. Mr. Disney says what I found to be the crucial negotiator’s insight line: “Have I been talking to the wrong person?” By the time he follows Mrs. Travers on the next flight to London and knocks on her door, he not only knows who she is but that her father’s name was Travers Goff and that she has taken his first name as her last name – and he has discerned that Travers Goff is Mr. Banks, the Mary Poppins character whom the author cannot relinquish. We all know that the outcome of the negotiation was a great success for both parties.

Why did I focus on this one line? I think it contains within its short seven words a few overlooked keys to negotiating success. First, it suggests that you do need to know your negotiating partner– that itself is often missed. It is not just how much you want something or the great reasons that you have to support your vision of a deal, your own power, fame, or previously successful charm, you must know the other party and how she might react to your “clear and correct” views.   And it implies that you must do even more, you must have enough empathy to perceive another’s world view. In this case, Disney thought it was both the author’s perceptions of him and his background and her strong attachment and the unjustified guilt of a child about her father that made her cling to her creation even against her own financial interest and in the face of losing her home.

Make sure you are never talking to the wrong person when you negotiate, talk to Helen Goff, not Mrs. Travers.



Go Bare to Protect Your Confidences

Choosing a bare award can preserve confidential information in arbitration

Published in and here by permission
By Laura A. Kaster Laura A. ContributorPublished: Apr 22, 2014

In choosing between a bare award and a reasoned award in arbitration, drafting or arbitrating counsel often focus on the salutary effect on logic and reasoning that having to write an award may have on the panel. There is no doubt that is an important and legitimate purpose for requiring a reasoned award.  As the renowned jurist Frank M. Coffin wrote in The Ways of a Judge 57 (Houghton Mifflin 1980):

[W]e may be in the very middle of an opinion, struggling to reflect the reasoning all judges have agreed on, only to realize that it simply “won’t write.”  The act of writing tells us what was wrong with the act of thinking.

But other needs should also be weighed.  The desire to assure careful thought in this particular way may be subordinate if the client has an overriding desire to maintain confidentiality.  Many clients elect arbitration because it is a private process; they and often their counselors believe that confidentiality follows.  However, privacy and confidentiality are not synonyms in the arbitration world.  At least in the U.S., seeking judgment on a reasoned arbitral award can expose not only the fact of the dispute and its outcome but underlyingconfidential information.  The reason for this exposure is that the needs of the open and publicly funded judicial system require that the judges’ rulings be subject to scrutiny.  As one of the few appellate decisions on this topic explains:

the dispositive documents in any litigation enter the public record notwithstanding any earlier agreement. How else are observers to know what the suit is about or assess the judges’ disposition of it? Not only the legislature but also students of the judicial system are entitled to know what the heavy financial subsidy of litigation is producing. These are among the reasons why very few categories of documents are kept confidential once their bearing on the merits of a suit has been revealed. In civil litigation only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault), is entitled to be kept secret on appeal. . . .  [M]any litigants would like to keep confidential the salary they make, the injuries they suffered, or the price they agreed to pay under a contract, but when these things are vital to claims made in litigation they must be revealed.

Baxter Int’l Inc. v. Abbott Labs. 297 F.3d 544, 546-47 (7th Cir. 2002) (Easterbrook, J).

Therefore, if the rationale for the underlying arbitral decision is part of the judicial record, confidentiality is threatened.  The Seventh Circuit made that perfectly clear in Gotham Holdings:

one can ‘‘agree’’ with someone else that a stranger’s resort to discovery under the Federal Rules of Civil Procedure will be cut off.  .  .  .. [The parties] were entitled to agree that they would not voluntarilydisclose any information related to the arbitration. . . .  Disclosure would be authorized only when a third party had a legal right of access.  Gotham Holdings LP v. Health Grades, Inc., 580 F.3d 664, 665-66 (7th Cir. 2009) (citations omitted).

How can the drafter or advocate deal with this? There are multiple precautionary moves, but one of them is to include in the arbitration clause, the terms of reference, or the preliminary hearing order a specific statement that the parties seek a bare or simple award only.  Some arbitrators may provide a separate statement of reasons if the parties so desire.  But to maximize the potential for maintaining confidences – go bare!


First Circuit Posits that Ordering a Violation of Regs may be grounds for vacatur

In Bangor Gas Company, LLC v. H.Q. Energy Services (U.S.) Inc., __ F.3d __, 2012 WL 4373685 (1st Cir. Sept. 26, 2012), an owner of a pipeline argued that an arbitration award required the parties to violate FERC regulations. Without clarifying its position on manifest disregard, the First Circuit upheld the award but stated that ordering a violation of law likely would lead to vacatur:

“we will assume (arguendo but with some confidence) that an arbitration would be vulnerable to the extent that it directed one or both of the parties clearly to violate” a rule or regulation of an administrative agency.

In this case, the Court found no regulation specifically prohibiting the conduct ordered by the award despite an agency staff opinion to that effect.