Conflict Resolution

Advanced Problem-Solving Strategies

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One of the things that mediators sometimes do is to try to get parties to think about lawsuits as a series of probabilistic outcomes, i.e., what are the chances the case will get dismissed before trial, that the plaintiff will prevail before a jury, that there will be an appeal, that the defendant will file bankruptcy, etc.  Parties often need to make a conceptual leap before they can even begin thinking about their dispute in those terms, however.  A lawsuit does not start out as a game of chance.  It starts out as a story in which one or both  parties injured or betrayed the other, and both parties seek vindication and compensation for their respective grievances.  Clients approach a […]

Parties to a mediation that results in settlement should have a clear understanding of whether their settlement agreement is enforceable.  Oral agreements generally will not suffice, and scrawled out term sheets also may not qualify as settlement agreements if they do not include language indicating that they are binding.  (For more information on the legal requirements for enforceability in California, check out this post on Vickie Pynchon’s blog.  The requirements for enforceability vary greatly from jurisdiction to jurisdiction.  Obviously it behooves people to be aware of them.) Is it worth the trouble to make sure that nobody goes home until the parties have set down in detailed, comprehensive, unambiguous, enforceable form, exactly what they have agreed to, so as to […]

As mediation has become more of an accepted and even required step in many lawsuits, expectations and practices of parties involved in litigation seem to have shifted somewhat.  We see a lot of lawsuits filed with the expectation that the filing will eventually lead to a formal settlement conference or a court-appointed or private mediation.  Parties sometimes postpone doing expensive discovery or filing expensive summary judgment motions, with the hope of resolving the case at a mediation conference. If that is the expectation, why even bother with filing the complaint?  Of course filing a complaint serves important purposes like framing the issues, announcing the seriousness of the filer’s intentions, tolling the statute of limitations, and perhaps other purposes.  But if […]

Even though I have lived in California for 20 years, I still find the habits of California drivers a bit strange.  This morning I once again marveled at how much trouble drivers here have merging into a single lane when one lane is blocked due to construction or some other activity.  Instead of just automatically doing an alternate merge into the single lane, a whole series of elaborate games seems to be required.  The cars in the unblocked lane try to close the gap to prevent the blocked cars from changing lanes, and the cars in the blocked lane often feel the need to engage in a lot of hand signals and gestures in order to continue on their way, […]