Conflict Resolution

Advanced Problem-Solving Strategies

Read The Latest Post

The wise client approaches the initial consultation with a lawyer with some ideas of what the client is trying to accomplish and with some perspective on his or her own situation. For such clients, the lawyer should be prepared to explain carefully how the process is likely to unfold, and help the client better understand their options. A lawyer can be confident that a wise client will listen carefully and trust the lawyer’s advice. But not all clients are wise. The simple client, for example, will come in for an initial consultation feeling aggrieved and agitated but uncertain what they are trying to accomplish or how to go about it. For example, an individual might believe they have been fired […]

The ABA Dispute Resolution conference, held this year in New York City, presents an interesting mix of programs on mediation, arbitration, negotiation and collaborative practice. The conference manages to combine these fields, even though the cultures of mediation and arbitration don’t always mesh very well; in fact they sometimes seem like opposites. But practitioners in both fields seem to get along. What they have in common is the desire to avoid litigation. Having a common enemy makes friends of us all. Thus, at one of the panels I attended, in-house counsel acknowledged that they require employees to sign arbitration clauses so that the company can avoid the burden and expense of class action lawsuits. Mediation or arbitration of employment disputes […]

A couple of recent experiences as a consumer of mediation services have made me wonder whether the practice is living up to its full potential. In one case, when the mediator and opposing counsel started talking about what was going to happen at trial, I told them that there was no way the case was going to trial. They already knew I had done my best to avoid engaging in motion practice, discovery or other forms of litigation activity, and they also knew that the cost of taking the case to trial would almost certainly exceed the amount in controversy, and that my clients probably couldn’t afford it. Therefore I didn’t see much point in talking about what was likely […]

Here is how one high stakes negotiation is currently playing out: First a recap. On February 13, 2016, Justice Scalia’s unexpected death created a vacancy on the Supreme Court. Within less than a day, leading Senate Republicans made a pre-emptive opening demand, announcing that they would refuse to consider, even to hold hearings for, any nominee the president proposed.  Next, President Obama announced that he would proceed in the normal course anyway, and he also invited the opposition to the White House, where they meet in the Oval Office on March 1, 2016. Presumably the parties gauged each other’s resolve, presented their respective best alternatives to a negotiated outcome of the dispute, perhaps suggested some ways of reaching a resolution. […]