Conflict Resolution

Advanced Problem-Solving Strategies

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Last week I heard Randall Kiser talk about research he and others have done on so-called “decision error” in taking cases to trial. This study got a fair amount of publicity when it was first published, and is frequently cited by judges and mediators in attempting to persuade parties to litigation that they are generally better off accepting a settlement than in pursuing cases to trial. This research found that about 60% of the time, plaintiffs who reject the defendant’s best settlement offer get a worse result at trial. Defendants only guess wrong about 25% of the time, but tend to lose a lot more money when they do. Even though I agree that parties are usually better off settling […]

I’ve been doing something of a CLE marathon the last few days, and so got a chance to listen to a lot of mediators and lawyers talking about the current state of the dispute resolution world (that includes both litigation as well as mediation and arbitration). One thread that came out of a talk I heard by Federal District Court Judge Gutierrez had to do with lawyers’ compliance (or lack of compliance) with the rules governing the preparation of cases for trial. One would think that lawyers would expect a better result, whether through trial or settlement, if they properly prepared their cases. But many don’t bother. Are they just lazy, or are they inexperienced, or is it that they […]

Often the judicial system, despite its flaws, is viewed as at least attempting to operate in a just and logical way, according to rules that we understand and agree upon. The hallmark of an informal dispute resolution system, on the other hand, is that it has no rules. It is seen as emotional as opposed to logical, and is also viewed as somehow cheating justice. When we look more closely at the human beings who use and operate the traditional justice system, we might have to question these stereotypes. I spent most of the past three days in continuing legal education on mediation, including moderating a panel this morning at an SCMA program on employment mediation. At one of the […]

When I meet people attending a mediation for the first time, I’m always interested in finding out what they expect will happen. Often they don’t know much about the process, and sometimes they come in expecting something quite different from what I have in mind. For those people, and even for those who have participated in mediations previously, I sometimes describe various approaches to conducting mediations. I usually have an idea about how I want to proceed, but I try to remain open-minded about what will work. I learned the Pepperdine five stage approach to mediation quite a while back (convening, opening, communicating, negotiating, closing), but that framework doesn’t fully answer some much more basic questions that I think about […]

Mediators often become evangelists for negotiated resolution of conflict, believing mediation or other forms of diplomacy to be superior to all other forms of conflict resolution in all circumstances, and with the potential of solving all problems. We should probably be more humble. We should understand that some conflicts cannot be resolved at all, and some can only be resolved by other means. President Obama, who most of the time stands for making every effort to achieve consensus, and who even won the Nobel Peace Prize(!), reminded us of that with his announcement last night that he had ordered, and the military had carried out, the killing of Osama Bin Laden. In this case, we were dealing with a character […]