Conflict Resolution

Advanced Problem-Solving Strategies

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If there is a dispute about the contents or the existence of an agreement of the parties following a mediation, is it ever appropriate for the mediator to testify?  The California Second District Court of Appeal, in Radford v. Shehorn, said that such testimony would only be allowed if the parties agreed to it, meaning that it is hard to think of a situation where testimony by the mediator would ever be permissible or useful.  (But see this post by Vickie Pynchon on another (unpublished) case where the mediator was permitted to testify that a written agreement the insurance company was seeking to enforce conformed to what the parties agreed during the mediation.) In the Radford case, there was a […]

As trials in civil cases have become increasingly rare, in part due to the rise of ADR, we sometimes forget that trials can serve a profound purpose.  There are few processes that can “decide” a contested factual issue like a trial.  Below is a video of David Boies debating Tony Perkins, head of the Family Research Council.  Boies’s explanation of  what happened at the recent Proposition 8 trial, makes me proud to call myself a trial lawyer, and reminds us of what courts can do at their best.  Even if you think the courtroom was not an appropriate place to determine the constitutional validity of a state initiative denying gay people the ability to marry, you have to admire trial […]

An article in the Harvard Negotiation Program newsletter (summarized here) reflects a common view that mediation and arbitration need to be “sold” more as an alternative to litigation.  In this view, it is seen as a problem that parties to business contracts often do not anticipate the likelihood of conflicts arising in the course of their relationship, and therefore fail to include as often as perhaps they should, clauses providing for alternative dispute resolution in the event of problems.  Because parties fail to anticipate the potential need for ADR, litigation becomes the default alternative when a conflict occurs. This way of looking at a problem–here the problem of choosing a method of resolving disputes–itself reflects a view of the world […]