Conflict Resolution

Advanced Problem-Solving Strategies

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The city of Detroit emerged from bankruptcy yesterday, a process that was successful because of something the participants labeled the “Grand Bargain.” The Grand Bargain is a complicated plan, but its key feature involves the transfer of the city’s extremely valuable art collection to a charitable trust, in exchange for about $800 million in new financing provided by the state and private parties. It sounds like a clever solution to a difficult problem. What jumped out at me from this morning’s LA Times article, was this comment from bankruptcy professor Laura Bartell describing how the parties managed to hammer out the deal: “When everyone realized the situation, there wasn’t a lot to argue about.” Really? Nothing to argue about? From what I […]

I wasn’t familiar with the term “frozen conflict” until I saw it applied to the current stalemate in the Ukraine, but apparently it has been used to describe other similar disputes in the past, especially dealing with other former territories of the Soviet Union. In the Ukraine, “frozen conflict” seems an apt description of a situation in which neither side can win, at least for the moment, but neither can formally accept the status quo either. The government of Ukraine refuses to acquiesce in the illegal seizure of a portion of its territory, but cannot reclaim that territory from Russia either, especially since a large number of people in the eastern part of the country support Russia. So they are […]

Here I want to talk about the emotional component of trials: both the agony and the ecstasy involved in this climactic phase of litigation. These emotions are stirred up in part by the incredible amount of work that needs to get done in the days and weeks leading up to trial, days that are consumed with pre-trial briefs and motions, jury instructions, witness and exhibit lists, re-reading the documents, preparing witnesses, etc. Time and cost considerations seem to go out the window. Whenever I am getting ready for trial, I seem unable to think about anything else. I disappear from family and other obligations. 12 Angry Men It’s not only the massive amount of preparation that turns litigants and lawyers […]

Mediation is often touted as a better alternative to taking a lawsuit to trial. It usually is; but I believe that is still the wrong comparison to make in most cases. The vast majority–far more that 90%–of civil cases are never going to trial anyway. They are mostly going to be resolved by default, or by motion, or by negotiated settlement. And if by settlement, that will happen between the parties themselves or with the court’s assistance or by mediation. It’s true that a lot of cases can be settled by raising the specter of trial as an unappealing alternative, but that specter is not going to materialize in most cases anyway, because eventually most parties in most cases are […]