Conflict Resolution

Advanced Problem-Solving Strategies

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The practice of going to mediation to resolve a litigated dispute has become routine.  Mediation is now viewed as a planned-for stage in the proceedings where the case is likely to get resolved.  The parties file their pleadings, attend a scheduling conference with the judge, perhaps engage in some motion practice, perhaps exchange some written discovery, but often postpone at least some depositions, expecting to settle the case at a scheduled session with a mediator.  This practice seems all well and good–good for the parties, good for mediators.  But maybe it’s too much and not enough at the same time. If all you want to do is settle the case, there are lots of ways to do that without calling […]

A new study published by the American Psychological Association asked lawyers six to twelve months in advance of trial to set their minimum goals for the trial outcome and their predicted chances of reaching that goal.  The largest percentage of lawyers who participated in the survey fell short of their goals, and also expressed over-confidence in their chances of reaching their goals.  Interestingly, the lawyers’ level of experience did not produce better predictive results.  Also interestingly, women lawyers were somewhat closer to the mark in their predictions than their more over-confident male brethren. I don’t find these results surprising at all.  Lawyers must project confidence to their clients, otherwise clients will doubt whether their lawyer is on their side.  Lawyers […]

In announcing his nomination yesterday of Elena Kagan for Justice Stevens’s seat on the U.S. Supreme Court, President Obama praised not only her achievements and intellect, but also her open-mindedness, and her “skill as a  consensus-builder.”  As dean of Harvard Law School, Kagan was known for bringing peace to a famously fractious faculty, and for opening the doors to a variety of political viewpoints.  As solicitor general, she has spent the past year studying the Supreme Court, looking for ways to entice a majority to support the government’s position.  This appears to be the training and temperament the President is looking for at this moment on the Supreme Court. Some on the left are disappointed at this selection, believing that […]

This week’s parliamentary election results in Great Britain illustrate the complexities of three party negotiations.  The last time elections resulted in a so-called “hung Parliament” was 1974, when the Conservatives failed to put together a deal with the Liberal Party to form a government.  To a foreign observer, it is hard to understand why the Conservatives, who won this year’s election, cannot simply offer the Liberals some important ministries in exchange for their support, but British politicians, unlike say Israeli politicians, who are used to a real proportional representation system, seem to have little taste for making the sorts of deals necessary to cobble together a parliamentary majority. The British appear more comfortable with a winner-take-all system, both at the […]

I recently saw the trailer for the Karate Kid remake, which made me wonder if it would match that thrilling moment in the original film where the kid suddenly realizes that all the time he thought he was just being exploited into doing a lot of backbreaking work, he was actually learning karate. Here is a dream of how I’d like to conduct a mediation: We all sit in a room discussing who knows what, getting to know each other better. All of the discussion seems tangential, even completely irrelevant to the matter the parties are so concerned about. Maybe we tell stories or do some exercises or play some games that people find a little weird or uncomfortable. Or, […]