Conflict Resolution

Advanced Problem-Solving Strategies

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Yesterday I mediated my last case referred by the Los Angeles Superior Court mediation program (aside from a couple of cases I am still trying to wind up as private mediations). This last case turned out to serve as a good illustration of some of the problems with the LA program. It was a case involving a high dollar amount, making me wonder why the parties chose a randomly-assigned mediator for three free hours. One of the attorneys was determined to insult the mediator, reminding me that I was chosen at random and admonishing me not to speak to her client. Another attorney refused to engage in any substantive discussions about the case until after the other side presented what […]

There was talk around the ABA Dispute Resolution Conference this week that the demand for mediation services may be declining. If that’s true, does that mean that mediation is falling out of favor, just as arbitration has somewhat fallen out of favor? Or is it a reflection of the economy and the decline in demand for dispute resolution services in general? Law firms have dramatically shrunk in recent years as clients are less willing to shell out gigantic sums for litigation. If litigation activity is declining, one would expect that fewer parties would use mediation as a stage in the litigation process. I think there is a larger trend going on, one that actually points in the opposite direction. I […]

Yesterday at the ABA Dispute Resolution spring conference I heard former Senator George Mitchell talk about his five year effort to mediate a peace agreement in Northern Ireland. When the agreement was finally signed in 1998, Mitchell knew the work of making peace was not over, that implementation of the agreement was going to be even more difficult than the long effort to obtain the agreement, and that it would take some time before violence died down. He told people in Ireland at the time that although he knew they still had a lot of difficult days ahead, he hoped someday to return to Northern Ireland with his son, born only about six months before the Good Friday agreement, and […]

One of the panels I attended at the ABA Section on Dispute Resolution spring conference turned into something of a psychology experiment. The presenters asked the participants to sit around a series of circular tables, and assigned each table a role to play as groups interested in a proposed canal project for a hypothetical harbor. My table was assigned to play several environmental groups opposed to the project for differing reasons, another table represented shipping company owners concerned about the cost, another represented union interests favorable to the project, and another represented government representatives sponsoring the project. We were asked to discuss among ourselves our concerns about the process that was supposed to take into account all of these different […]

We tell stories to make sense of experience. We need to organize the chaos of events in the form of stories, containing a beginning, a middle and and end. By doing that, events acquire meaning. We tell stories to define who we are. Tomorrow night my family will gather to re-tell the Passover story, a defining story of the Jewish people, as it charts a journey from slavery to the promised land. Every culture defines itself by telling their own stories. We also tell stories as a means of resolving conflict. One thing that trial has in common with mediation is that both forms of dispute resolution provide an opportunity for the parties to the conflict to tell their stories. […]

Empathy is an essential tool in mediation, both for the mediator and hopefully a quality the participants develop as well. Mediators recognize, unless we want to act purely as evaluators (and even then the capacity for empathy is still important), that we need to try to empathize with the needs and feelings of both sides in every case, to build trust and encourage understanding.  But sometimes the actions of parties to a dispute seem so foreign or even repugnant to our own values that we find it difficult to empathize. And when we can’t empathize, we tend to distance ourselves and condemn. Are there limits to the capacity to empathize? Are there actions so beyond the pale of acceptable human behavior that […]