Conflict Resolution

Advanced Problem-Solving Strategies

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A long time ago, when I was fairly new at law practice, I represented a plaintiff in a contentious sexual harassment case against a large company. After a series of pre-trial battles, the defendant’s counsel opened the door to the possibility of settlement, throwing out an insultingly low-ball number. I wasn’t sure how to respond. At that point in my career, I thought I knew how to litigate, but nobody had ever taught me how to negotiate. I had never received any training in negotiation strategy in law school, and very little at my law firm. The subject simply wasn’t taught at the time. So I honestly didn’t know the best number to come back with in order to lead […]

Israeli Prime Minister Benjamin Netanyahu’s speech to Congress yesterday about the conflict with Iran (transcript here) illustrates an attitude many parties in conflict take toward settlement negotiations. As the possibility of a negotiated resolution of a conflict begins to emerge, elements on one side or the other often find themselves resisting the deal.  In this case, the deal on the table would allow Iran to maintain some nuclear capacity, but would not allow them to build nuclear weapons. It’s a bad deal, according to Netanyahu, because it would allow Iran to build many thousands of centrifuges, and shorten what is called the “break out time” that it would take for the country to build actual weapons. On the other hand, […]

In the first episode of the second season of Orange is the New Black, the series presents a variation on the prisoner’s dilemma problem that is often discussed in mediation programs and texts. Piper and her former girlfriend Alex both have to testify against the drug kingpin they used to work for. Alex persuades Piper to lie and say she had no contact with the guy, otherwise he might take reprisals against them both. After giving her testimony, Piper finds out that Alex in fact told the truth at the trial, leaving Piper exposed to a possible perjury prosecution and an increase in her sentence. In the prisoner’s dilemma scenario, an opportunity to communicate as well as familiarity with the […]

The California State Bar Standing Committee on Professional Responsibility and Conduct has issued a proposed opinion attempting to draw the line between unethical misrepresentations during negotiations, and permissible “puffing.” Using this distinction, false statements about, as examples, the existence of favorable witnesses, or about the amount of a party’s earnings, or about policy limits, would all fall on the unethical side of the line, and would subject an attorney making them to potential discipline. On the other hand, false statements about a party’s “bottom line” of settlement authority, or about a party’s willingness to litigate or its plans to file bankruptcy, would be considered mere “puffing,” basically the kinds of lies that parties expect the other side to tell during […]

This week, by passing a new budget agreement through the House (still waiting on the Senate), Congress finally seems to be learning how to get back to business. To do that requires managing truly unresolveable conflicts, instead of allowing those conflicts to gum up the works completely. Positions on both sides have hardened to the point where Republicans will not accept even a penny of tax increases, and Democrats will not accept cuts to entitlement programs. That means the usual split-the-difference approaches no longer work. Meanwhile discretionary spending has already been cut more than both sides feel comfortable with. Support for restoring defense cuts in particular cuts across party lines. So how do you craft a budget agreement in this […]