Conflict Resolution

Advanced Problem-Solving Strategies

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There is a lot in Daniel Kahneman‘s book Thinking, Fast and Slow of interest to mediators and other people involved in conflict. The book sums up a lifetime of work in psychology and economics, and serves almost as a catalog of cognitive biases we encounter in business, the legal system and elsewhere. One chapter describes the optimism bias, which may be essential to making capitalism function, but which also leads to many costly decisions for individuals. For example, the optimism bias leads entrepreneurs to expect success in opening their own small business such as a restaurant, despite the knowledge that the majority of such businesses fail within a few years. Kahneman also describes a similar bias he calls the planning […]

The recent decision by the Lakers player formerly known as Ron Artest to change his legal name to Metta World Peace opens up immense possibilities for sportswriters and commentators to add layers of irony and nuance to their coverage. I’m not sure the sports community is ready to rise to the challenge. For example, although today’s LA Times story, about Coach Mike Brown’s decision to shift World Peace from the starting lineup to the second string, did lead off by saying that the coach is “giving World Peace a chance . . . to come off the bench,” the article otherwise left these possibilities largely unexplored. Never fear. I am fully prepared to leap into the breach. What kind of […]

You know that mediation has hit the mainstream when the cover story of the Los Angeles Lawyer magazine (published by the Los Angeles County Bar Association) is about mediation confidentiality.  The scope of mediation confidentiality is not only a hot issue in the field, but important to every lawyer who encounters mediation, which is getting close to everyone nowadays. Retired Judge Michael Marcus, now a practicing arbitrator and mediator, has published a helpful summary of the development of the law regarding mediation confidentiality in California in both the state and federal courts. I won’t try to summarize his summary here, but am posting this for my own benefit and for anyone else who needs a handy link to all the […]

One of the touted benefits of ADR is that it allows parties to design their own dispute resolution process specially suited to their needs. Problems can arise, however, if a court is subsequently called upon to try to figure out what to call the process the parties have invented. A court might need to do that to decide what rights and obligations the parties have assumed under their process. A recent Federal Circuit case, Kimberly-Clark v. First Quality Baby Products, provides a nice illustration of this problem. (Thanks to the Disputing blog for bringing it to my attention.) In a series of patent infringement disputes between two consumer products giants Kimberly-Clark and Proctor & Gamble, the parties crafted a series […]

(Wikimedia Commons) Judge Jed Rakoff of the Southern District of New York today rejected a proposed consent judgment and  $285 million settlement of an SEC enforcement action against Citigroup. The SEC alleged that Citigroup had defrauded investors in a fund comprised of toxic assets, but was willing to accept a monetary settlement and injunction without requiring Citigroup to admit the truth of these allegations. In this case, the court disapproved this longstanding practice, in its words, “hallowed by history, but not by reason.” The court’s opinion determined that the proposed Consent Judgment “is neither fair, nor reasonable, nor adequate, nor in the public interest. Most fundamentally, this is because it does not provide the Court with a sufficient evidentiary basis […]