Conflict Resolution

Advanced Problem-Solving Strategies

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Way back when I served as a law clerk to a federal district court judge, I remember watching a trademark infringement bench trial about to begin. The parties had all their exhibits lined up; they had prepared their experts and their surveys; their attorneys announced that they were ready to proceed. Months before, I had worked on the opinion denying one side’s motion for summary judgment, so I knew that the parties had already invested in a lot of pre-trial proceedings. Before hearing opening statements, my judge advised the parties that he had formed no conclusions yet about which side was in the right. He told the parties and their attorneys that he would try to reach the correct result, […]

This week, the Franken amendment to a Defense appropriations bill became law, forbidding most defense contractors from using mandatory arbitration clauses in their employment contracts. I have written about this subject on my law firm blog site previously. This legislation is part of a larger, continuing trend towards the elimination of mandatory arbitration in virtually all employment and consumer disputes. People in the ADR community may be concerned about this trend, but I think we should applaud it. The US Supreme Court in recent years went very far in the direction of upholding the enforceability of mandatory pre-dispute arbitration clauses (in contrast to the approach of the state courts in California for example). As a result of the inevitable backlash […]

“Preparation, preparation, preparation,” is the trial lawyer’s mantra. It is possible to over-try a case, but it is not possible to be over-prepared for trial. On the other hand, preparation is expensive. And preparation may seem wasteful, if the case does not go to trial, as most cases don’t. So most trial lawyers would rather avoid burdening their clients with unnecessary costs, i.e., costs that are not going to help try the case if it must be tried, or that would help settle the case, which might mean costs that show the other side that you will be well-prepared for trial. Parties go to mediation precisely to avoid the enormous costs of preparing for trial. As long as they have […]

As everyone knows, the US Senate is currently in the midst of negotiations, mostly among the 60 members of the Democratic caucus, aimed at producing a consensus health insurance reform bill that can pass the Senate. Without being privy to any inside information, I can only speculate as to what is really going on behind closed doors in these negotiations. But I did find interesting this week’s reports that the Democratic Senators had apparently reached a compromise agreement that would have jettisoned the so-called “public option” but included a provision to allow people over 55 to buy into Medicare. This latest new idea now seems dead, but the bill may be back on track, and the majority of Senators remain […]

It is commonplace advice in settlement negotiations, including mediations, to warn the participants not to be insulted by the other side’s opening demand or offer. Those who play the negotiation game often enough know that these opening numbers merely set the parameters for further negotiation, and are often deliberately unreasonable. Whether consciously or unconsciously, parties making unrealistic opening demands or offers are taking advantage of the concept of “anchoring.” That theory, which has been validated by some research, holds that people are highly affected by the number, or price, that is attached to something. So theoretically, if one were to conduct two settlement negotiations of the exact same case (let’s say this case has an objective value of $50,000), and […]