Conflict Resolution

Advanced Problem-Solving Strategies

Read The Latest Post

If I were to write a book on my experiences practicing law, I might use the above title. It has multiple meanings. “From litigation to conflict resolution” describes what happens with most contested legal disputes; they tend to follow a trajectory from an adversarial to a more cooperative process. An aggrieved party starts with a desire to punish, or seek justice against, the opposition that they believe has wronged them. The accused party reacts defensively. Both sides tend to contest every assertion made against them. They create new grievances. They demand that the court sanction the other side. Whether or not the court gives them satisfaction, however, eventually they will in most cases reach a negotiated resolution of the dispute, […]

I’ve been listening to the cast album from the musical “Hamilton”, in preparation for finally getting to see the show when it comes to LA later this summer. One of the bits of historical information that can be gleaned from this show concerns the rules of dueling, still a fairly common occurence in the early 19th Century. We may think we have progressed far beyond the barbaric practice of dueling, but based on the way dueling is described in this show, it appears to function in much the same way as as our more modern systems of dispute resolution today. The so-called “ten duel commandments” reveal that the whole ritual of dueling actually incorporates a system based on negotiation. In […]

Ryo Oyamada was fatally mowed down by a police car in New York City four years ago. An article in the New York Daily News today reported on the settlement of a family’s suit against the police department for the wrongful death of their son. I was struck by a statement the family is reported to have released explaining their decision to accept the settlement: “Our family feels that there is no way to hold the NYPD accountable through the court system.” It’s sad to hear of a party that feels so defeated by accepting a settlement. I know nothing about this particular case, aside from the scanty details provided in the news article, but it seems unfortunate that the family […]

It’s not enough to suggest that in resolving disputes, we ought to encourage the use of mediation or negotiation or some other techniques that are preferable to a long, drawn-out lawsuit. Litigants often are not comfortable enough with ADR to resort to it as a first method. Mediation for example has developed a reputation as something parties should not normally resort to until the case has been litigated for a time, to provide the parties enough information to make mediation effective, and to give them enough experience with litigation that they will be motivated to want to avoid more of it. But litigation is such an expensive and destructive process that it seems a shame to require parties to suffer […]

The other day, I was trying to explain to another attorney why I’ve grown to dislike the term “litigation,” even though it’s the most commonly-accepted way of describing most of my law practice. I don’t have any objections to filing or defending lawsuits, and I’m also proud to call myself a trial lawyer for those unusual cases that finally make it to trial. But to me, “litigation” connotes a lot of activity in between that is not only wasteful, but actually counter-productive to the goal of resolving the dispute (I’m thinking of discovery disputes in particular, but the impulse to contest everything the other side is saying can arise in almost any procedural situation). This litigious mindset is counter-productive not […]

For those who still think that litigation must always be conducted in an adversarial manner–that litigants must oppose anything suggested by the other side, and bring every dispute before the court for resolution–consider that the courts are telling you otherwise. It’s not just that the courts routinely encourage settlement, and discourage trials; it’s also that they have changed the rules to compel efforts at negotiating rather than seeking judicial resolution of problems that occur during the course of a lawsuit. It’s almost as though the courts don’t believe in the process they are designed for, because they are requiring you to engage in a different process first. Meet and confer requirements have been around for a long time with respect […]