Conflict Resolution

Advanced Problem-Solving Strategies

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One of the more interesting courses I took in law school was International Law, which is not a course that everyone takes, because it does not appear to offer much practical value for most lawyers’ careers.  I didn’t see much practical value in it either when I signed up, but found that it got me thinking about the law in a much different way from other law school courses.   What you learn when you study international law is that the system of international law is for the most part not structured as a body of statutes enacted by legislatures, or precedents handed down by judges.  International law is mostly not enforced by police, or by fines, or by prison.  Because […]

Parties to a mediation that results in settlement should have a clear understanding of whether their settlement agreement is enforceable.  Oral agreements generally will not suffice, and scrawled out term sheets also may not qualify as settlement agreements if they do not include language indicating that they are binding.  (For more information on the legal requirements for enforceability in California, check out this post on Vickie Pynchon’s blog.  The requirements for enforceability vary greatly from jurisdiction to jurisdiction.  Obviously it behooves people to be aware of them.) Is it worth the trouble to make sure that nobody goes home until the parties have set down in detailed, comprehensive, unambiguous, enforceable form, exactly what they have agreed to, so as to […]

Even though I have lived in California for 20 years, I still find the habits of California drivers a bit strange.  This morning I once again marveled at how much trouble drivers here have merging into a single lane when one lane is blocked due to construction or some other activity.  Instead of just automatically doing an alternate merge into the single lane, a whole series of elaborate games seems to be required.  The cars in the unblocked lane try to close the gap to prevent the blocked cars from changing lanes, and the cars in the blocked lane often feel the need to engage in a lot of hand signals and gestures in order to continue on their way, […]

The practice of quickly moving to caucus sessions has become so widespread that many parties attending mediation seem to expect to caucus almost immediately.  Parties seem to want to cut to the chase of settlement negotiations quickly, and are concerned about the possible volatility of a joint session.  I had a couple of experiences recently where counsel expressly asked me before the mediation even began to please not even allow the parties into the same room at all, because they viewed it as a waste of time, or worse, to face the other side.  My response was to suggest that we at least stay together for introductions and some initial housekeeping matters, and then continue in joint session only for […]

As everyone knows, the US Senate is currently in the midst of negotiations, mostly among the 60 members of the Democratic caucus, aimed at producing a consensus health insurance reform bill that can pass the Senate. Without being privy to any inside information, I can only speculate as to what is really going on behind closed doors in these negotiations. But I did find interesting this week’s reports that the Democratic Senators had apparently reached a compromise agreement that would have jettisoned the so-called “public option” but included a provision to allow people over 55 to buy into Medicare. This latest new idea now seems dead, but the bill may be back on track, and the majority of Senators remain […]

It is commonplace advice in settlement negotiations, including mediations, to warn the participants not to be insulted by the other side’s opening demand or offer. Those who play the negotiation game often enough know that these opening numbers merely set the parameters for further negotiation, and are often deliberately unreasonable. Whether consciously or unconsciously, parties making unrealistic opening demands or offers are taking advantage of the concept of “anchoring.” That theory, which has been validated by some research, holds that people are highly affected by the number, or price, that is attached to something. So theoretically, if one were to conduct two settlement negotiations of the exact same case (let’s say this case has an objective value of $50,000), and […]