Conflict Resolution

Advanced Problem-Solving Strategies

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I spent the day in the jury room at LA Superior Court downtown today, doing my one day of service.  The chairs were comfortable, the TVs were (thankfully) off for some reason, the wifi was free, and the court personnel were friendly and almost entertaining.  The court makes the process about as pleasant it could be for an experience that feels like being institutionalized for almost 8 hours.  And the best part was that I did not get called to a single courtroom all day, so was excused without even being subjected to voir dire.  A large proportion of my fellow jurors also escaped without being asked to serve.  This reminded me that the beauty of jury trial sometimes is […]

As trials in civil cases have become increasingly rare, in part due to the rise of ADR, we sometimes forget that trials can serve a profound purpose.  There are few processes that can “decide” a contested factual issue like a trial. Below is a video of David Boies debating Tony Perkins, head of the Family Research Council.  Boies’s explanation of  what happened at the recent Proposition 8 trial, makes me proud to call myself a trial lawyer, and reminds us of what courts can do at their best.  Even if you think the courtroom was not an appropriate place to determine the constitutional validity of a state initiative denying gay people the ability to marry, you have to admire trial […]

An article in the Harvard Negotiation Program newsletter (summarized here) reflects a common view that mediation and arbitration need to be “sold” more as an alternative to litigation.  In this view, it is seen as a problem that parties to business contracts often do not anticipate the likelihood of conflicts arising in the course of their relationship, and therefore fail to include as often as perhaps they should, clauses providing for alternative dispute resolution in the event of problems.  Because parties fail to anticipate the potential need for ADR, litigation becomes the default alternative when a conflict occurs. This way of looking at a problem–here the problem of choosing a method of resolving disputes–itself reflects a view of the world […]

For Dodgers fans, this is shaping up to be a trying year, with the team a bit shy of the elements that are needed for post-season success, and with the issue of ownership of the team headed for an epic battle in divorce court.  Meanwhile, the story in the LA Times Saturday was about Frank McCourt adding a star trial lawyer to the team of legal talent he has arrayed against his wife. “It’s like having your best athletes take the field,” said Loyola Law School professor and legal commentator Laurie Levenson. “You’ll see the best fight possible.” I wonder whether they could fill Dodger Stadium with all of the people who would be excited to watch the best fight […]

One of the things that mediators sometimes do is to try to get parties to think about lawsuits as a series of probabilistic outcomes, i.e., what are the chances the case will get dismissed before trial, that the plaintiff will prevail before a jury, that there will be an appeal, that the defendant will file bankruptcy, etc.  Parties often need to make a conceptual leap before they can even begin thinking about their dispute in those terms, however.  A lawsuit does not start out as a game of chance.  It starts out as a story in which one or both  parties injured or betrayed the other, and both parties seek vindication and compensation for their respective grievances.  Clients approach a […]

As mediation has become more of an accepted and even required step in many lawsuits, expectations and practices of parties involved in litigation seem to have shifted somewhat.  We see a lot of lawsuits filed with the expectation that the filing will eventually lead to a formal settlement conference or a court-appointed or private mediation.  Parties sometimes postpone doing expensive discovery or filing expensive summary judgment motions, with the hope of resolving the case at a mediation conference. If that is the expectation, why even bother with filing the complaint?  Of course filing a complaint serves important purposes like framing the issues, announcing the seriousness of the filer’s intentions, tolling the statute of limitations, and perhaps other purposes.  But if […]