Conflict Resolution

Advanced Problem-Solving Strategies

Read The Latest Post

While lots of attention is being paid to this year’s Oscars fiasco in which the presenters were handed the wrong envelope for the final award, I want to call attention to a little-noticed speech by Mark Rylance, who presented the (correct) award for best supporting actress to Viola Davis. Before announcing the winner, Rylance noted that oftentimes supporting actors would be better described as opposing actors. Their role is to disagree with and challenge other actors, creating the conflicts that make for a good story. He went on to explain how valuable such opposition is, not only in telling stories, but also in sports, and in society in general. All of the nominated actresses–Naomie Harris in Moonlight, Viola Davis in […]

When you look at the literature on negotiating, you tend to find (at least) two schools of thought. One, exemplified by Fisher and Ury’s Getting to Yes and its progeny, is a “win-win” approach that emphasizes communication and exploration of parties’ underlying interests. The other is more of a “win-lose” philosophy that emphasizes getting the upper hand in negotiations and gaining profits for one side at the expense of the other. Some have labeled these as “soft” or “hard” approaches to negotiation. Before trying to evaluate which approach to negotiation has more validity, I should note that there is some overlap between the two camps. An interest-based bargainer might say that being mindful of the other side’s interests does not […]

A couple of recent experiences as a consumer of mediation services have made me wonder whether the practice is living up to its full potential. In one case, when the mediator and opposing counsel started talking about what was going to happen at trial, I told them that there was no way the case was going to trial. They already knew I had done my best to avoid engaging in motion practice, discovery or other forms of litigation activity, and they also knew that the cost of taking the case to trial would almost certainly exceed the amount in controversy, and that my clients probably couldn’t afford it. Therefore I didn’t see much point in talking about what was likely […]

In Los Angeles County, where the court is no longer assigning mediators, attorneys who used to rely on the ADR panels might be feeling a bit at sea. One reason is that many attorneys appreciated the court’s service in saving them the bother of having to choose a mediator. That way attorneys didn’t have to admit to their adversaries that they might be interested in settlement. They didn’t even have to try to reach agreement with opposing counsel on how and where to conduct mediation. They didn’t have to admit to their clients that they might actually want to let go of their dog of a case. If they wanted to, they could blame the court for forcing this procedure […]

Assuming the LA Superior Court proceeds with its plan to close its ADR program this spring, the question to ask is not: how will people find mediators? Because mediators are not difficult to find. A web search will turn up hundreds of private mediators in the Southern California region. ADR provider organizations will be only too happy to refer litigants to their panels.  Organizations like SCMA have lists of mediators accessible on their websites. And a number of directories are available in which mediators promote their services. The real question is whether parties and attorneys are going to continue to seek out the services of mediators after the court stops performing the functions of assigning cases to mediators and following […]