Conflict Resolution

Advanced Problem-Solving Strategies

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A new book by Sephen Goldberg, Jeanne Brett, Beatrice Blohorn-Brenneur and Nancy Rogers presents a concise primer on what participants can expect from the mediation process. Being academics, the authors ground their discussion in theory, starting with an explanation of the differences between conflicts and disputes, as well as an explanation of how disputes can be resolved with reference to power, rights and interests. But the book is much more practical than theoretical, and is fairly free of academic jargon. The heart of it clearly explains the roles of the participants, the mediator, and counsel; through the processes of choosing a mediator, preparing for the mediation, opening the mediation, holding joint sessions and caucuses, reframing the parties’ conceptions, leading the […]

The California Law Revision Commission has issued its draft recommendations for an amendment to the Evidence Code carving out a new exception to mediation confidentiality. This project has been about four years in the making, and was originally spurred by concern over the California Supreme Court’s decision in the Cassel case, which excluded evidence in support of a subsequent malpractice case, of alleged attorney misconduct in inducing their clients to settle a case in mediation. The Commission’s report, which runs to 158 pages, reflects a thorough process, but one that is probably going to be greeted with fear in the mediation community. Many mediators support an “absolute” exclusion of any evidence of statements made by anyone in the course of mediation, […]

In the second Guardians of the Galaxy movie, there is a character named Mantis who has the power to sense the emotional state of anyone she touches. She can’t read their thoughts, but she can read their feelings. The other characters are amazed, and sometimes embarrassed, that Mantis can sense what they are secretly feeling. The character shows that it is often more important to understand emotions than rational thoughts. The power to read the emotional state of others is important in conflict resolution, maybe more important than understanding what people think the conflict is about. Emotions rule over logic most of the time, and identifying those emotions can help establish connections that enable parties to resolve conflict. What the […]

At the ABA Dispute Resolution Conference, I had a chance to hear a panel of experts from around the world talk about different ways of viewing the mediator’s role in helping achieve a just result for parties using the process. In China, which has a couple of thousands of years of experience using variants of mediation, the mediator’s role in this regard is viewed very differently from the west, where the practice is of relatively recent vintage. There, mediators have the power, even the duty, to make sure that the result accords with legal norms, and can even prescribe a different outcome from one the parties express. In countries such as the UK, Australia, and the US, on the other […]

Parties in conflict may face a choice among various processes for conflict resolution–litigation, arbitration, mediation, or some other formal or informal process. Attorneys are accustomed to presenting their clients with this array of options, and explaining the pros and cons of each. But the choice of process may turn out to be less important in many cases than the choice of approach to resolving the conflict. Parties choosing litigation, for example, are likely to enter that process with an adversarial mindset, filing every possible motion, and disputing every assertion made by the other side. This is the way many of us–including myself–were trained to litigate. But litigation can also be conducted with a more cooperative attitude, and nowadays courts tend […]

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 […]