Conflict Resolution

Advanced Problem-Solving Strategies

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At the ABA Dispute Resolution section spring conference, I attended a talk on mediating discovery disputes, a subject that has been of interest to me for a long time, but which should be more urgent given the difficulty traditional court processes and rules have in managing the continuing explosion of data. As Marian Riedy, who has written about the difficulties of retrieving electronic data, pointed out, the enormous costs of discovery of such data make it essential that parties cooperate in crafting agreements on the scope of discovery. Indeed, federal and state rules generally require efforts to resolve discovery issues by negotiation. That being the case, there would seem to be a place for mediators to step in and assist […]

Lots of ideas have been floating around for awhile describing new ways to practice law in light of the rise of alternative dispute resolution and the vanishing trial. These ideas revolve around finding a more cooperative, negotiated approach to exchanging information, evaluating the parties’ interests and positions, and preparing a case for early resolution. This approach shares some of the goals and styles of collaborative law, but according to the collaborative lawyers, you can’t properly call it collaborative law unless the lawyers and parties are willing to sign a participation agreement that requires the attorneys to withdraw if either party decides to proceed with litigation. Acceptance of that process has taken hold in the family law area, but has not […]

The problem with payment plans is that they are a nuisance to enforce. It seems that more often than not, the party that is supposed to make the payments at some point stops keeping up with its obligations, and the party to whom the payments are due has to take some action to get the payment plan back on track. Naturally, people at the time of entering into such arrangements usually want to avoid these problems. The debtor wants an agreement that they can perform, and the creditor wants the best enforcement tools available to make sure the payments are made. One common technique is to provide that in the event of default, judgment can be entered for an amount […]

Last night I had a chance to hear Shane Bauer, Josh Fattal and Sarah Shourd discussing their new book A Sliver of Light, which recounts their two year ordeal of imprisonment in Iran. You might be more familiar with them the way they were usually characterized in the press as the “three American hikers.” They prefer to be thought of as hostages rather than hikers. In actuality, they were tourists visiting the Kurdish region of Iraq. Hiking was just the activity they happened to be engaged in on the day they accidentally crossed (or were lured across) the border into Iran. Their story is compelling as a prison and survival narrative, and as a result of their experiences, they have […]