Conflict Resolution

Advanced Problem-Solving Strategies

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Is a willingness to negotiate a sign of weakness? That seems to be the thrust of the critique of Thomas Frank, the latest prominent leftist critic of the Obama administration. Frank charges that Obama gave away too much to the right, because he stressed the importance of bi-partisanship, when he should have been fighting harder on substantive issues, such as punishing Wall Street bankers, or achieving more economic stimulus. Frank seems to think because the president placed the ideal of bi-partisanship above these other policy goals, he was forced to concede too much to the opposition. The idea is that Obama’s emphasis on bi-partisanship makes him a bad negotiator. Frank thinks that if you announce agreement with them in a cooperative way, that will make […]

Tina Fey’s book Bossypants has a chapter on her time with the Second City improvisational theatre troupe in Chicago. In it, she includes a section outlining four rules of improvisation. (This section is actually entitled “Rules of Improvisation That Will Change Your Life and Reduce Belly Fat,” although in a footnote she explains that these rules will not reduce belly fat.) These rules can nevertheless be useful in lots of situations, including mediation. I am not the first to note the similarities between mediation and improvisational theatre. Others, such as LA mediator Jeffrey Krivis, have written extensively about the applicability of improvisational skills in mediation and negotiation. Here are Tina Fey’s four rules: The first rule is always say yes. […]

This question comes up a lot. And the answer seems simple. Parties need to personally appear at mediation. In private mediations, we decide who should attend when we set up the mediation. In court-annexed mediation, there are rules addressing this question. In LA County Superior Court, for example, it’s local rule 3.272 now. In the Central District of California Federal District Court, it’s local rule 16-15.5. Both say parties need to attend in person. If there is any question about who on behalf of a corporate or other type of organization should appear, it should be someone with full authority to settle the case. Everybody understands and agrees that mediation doesn’t work as well without the personal attendance and full […]

Forrest (Woody) Mosten is a mediation trainer, and a prominent collaborative divorce lawyer and mediator here in Los Angeles. I came to his attention when I attended a seminar last year that he led on collaborative law, in which I had some fun playing a somewhat skeptical role. This week I had a chance to meet with Woody to discuss the possibility of a different kind of collaboration–possibly leading to an article or a book–and learned more about Woody’s background as one of the pioneers in developing legal clinics for middle class clients (having been one of the founders of Jacoby & Meyers), as well as in unbundling legal services. We talked about how our different career paths (mine the […]

At a mediation I handled recently, I walked into the conference room as one party’s lawyer was explaining to her client the differences between “facilitative” and “evaluative” mediators. “I’m a facilitative mediator,” I proudly told the lawyer and client. I said that because that is how I prefer to think of my own style, and because that is a style that at least to me seems more consistent with the ideals of mediation. Evaluative mediators act more like judges, even though their opinions are not binding on the parties. Evaluative mediators can be quite effective, if that is what the parties are looking for. Most of the time, however, I feel that a third opinion of the merits of a […]