Conflict Resolution

Advanced Problem-Solving Strategies

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In talking recently with a friend and fellow attorney about the kinds of mediators most lawyers and litigants are looking for, I realized that most of what passes for mediation these days is not mediation as I would define it, at all. First there is arbitration-style mediation.  You go to a retired judge or similar knowledgeable authority figure. One side presents their case to the mediator.  Then the other side presents their case.  Then the mediator tells you what he thinks the case is worth. The only difference between that style of mediation and arbitration is that the parties are free to take the mediator’s opinion or leave it. But they have never really communicated with each other, and they […]

Justice Scalia is known for his theory of interpreting the Constitution by reference solely to the text in light of the meaning that the drafters supposedly intended at the time they wrote it. In his book A Matter of Interpretation, Scalia has defended his approach as follows: Of all the criticisms leveled against textualism, the most mindless is that it is formalist. The answer to that is, of course it’s formalistic! The rule of law is about form . . . A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime and the murderer has confessed in writing and on videotape. We nonetheless insist that before the […]

I used to think, back when I was a naive young law clerk, and even into my first few years of practice, that the legal system should provide a clear answer to most legal questions. If you were to read and research carefully any random motion, say for summary judgment, or listen to all the evidence and argument presented in any civil case, the vast majority of the time, the system should provide the same answer to each problem.  Especially for pure questions of law. If we’re not all getting the same answer, we probably just haven’t analyzed the problem carefully enough. I still think that predictability is an important ideal, but I no longer think the legal system will […]

Let’s say you’re the mediator and the plaintiff’s attorney makes an initial demand of $20 million in response to which the defendant offers $2.5 million. You turn to the plaintiff and ask how he feels about settling his claims, and he walks out of the conference room, saying “Whatever all of you decide is ok with me.”  What do you do? This was the situation in the second episode of the new series Fairly Legal, which involved the mediation of a civil suit by an exonerated prisoner who was wrongfully imprisoned for more than 20 years. Most mediators in that situation would take the plaintiff at his word, especially since he has an attorney to represent his interests, try to […]

Vickie Pynchon has a fun post up on the Forbes website about Dennis Kucinich’s suit against the Congressional cafeteria for breaking a tooth on an errant olive pit found in his sandwich.  Her post got me thinking about how mediation deals with so-called “frivolous” lawsuits.  To start with, I represent enough plaintiffs to have a bit of a problem with the term “frivolous lawsuit.”  If a case is obviously frivolous on its face, any judge would immediately see that, and would dismiss the case.  So an obviously frivolous case shouldn’t cause enough problems to be worth complaining about.  By definition, then, the kinds of frivolous lawsuits that people complain about are those that have enough potential merit to survive a […]

Some mediators I was meeting with this morning expressed trepidation about the new TV series Fairly Legal.  (See my prior post on the announcement of this series over a year ago.)  We were all curious to see it, but worried about such questions as whether mediators in real life can live up to the glamorous image of a TV mediator.  We also wondered whether the show will give people the wrong idea about mediation.  And the question I found most interesting, how will a show about mediation–which aims to reduce and resolve conflict–be able to show the conflict and drama so necessary for television?  Having just watched the premiere, I came away fairly impressed with the way the show dealt […]