Conflict Resolution

Advanced Problem-Solving Strategies

Read The Latest Post

There seems to be a raging debate in the mediation community about the usefulness of joint mediation sessions vs. separate caucus sessions. Many mediators keep the parties and their attorneys in separate rooms almost from the outset. They do this to minimize animosity, and to avoid driving the parties further apart with hours of venting, accusations and counter-accusations. They do it because the parties and attorneys are often impatient to cut to the chase of negotiations, and feel no need to exchange information they already know too well. Other mediators believe there is a value in attempting to mend a broken relationship, or that the parties may need the cathartic experience of confronting each other and listening to each other […]

Mediators will sometimes tell the parties that the measure of whether a proposed settlement is fair is that it should make both sides equally unhappy. In other words, a party accepting less (or paying more) than they think they should is supposed to be consoled by the fact that the other side feels exactly the same way. I think this is a very negative way of looking at settlement. I tell the parties in a mediation exactly the opposite. I tell them that if they think they will be better off rejecting the settlement and taking their case to trial, by all means they should do that. No one should accept a settlement that makes them worse off than the […]

The resolution of conflict generally starts by looking backward. The parties bring their conflict to a neutral authority, whether a judge, arbitrator or mediator, providing the information necessary to allow someone to sort out who was right and who was wrong, who should pay and how much. Some practitioners in the mediation field are suggesting that mediation should be a more forward-looking process, and need not be as focused as it frequently is on the details of the conflict. When mediation instead asks the parties to think about how their lives might be better without the conflict, or about what aspects of their relationship are positive, then it can truly present an alternative way of resolving a dispute. I heard […]

Some mediators view the parties’ attorneys as an obstacle to achieving a settlement. I do not find that approach constructive. While attorneys may seem to have a vested interest in preventing settlement, more often the attorneys are just trying to get the best possible result for their clients. Attorneys also generally recognize that settlement is more likely to achieve the best result for their clients than taking on the risks and costs of trial. Most attorneys are pretty cautious, and most do not like to lose. That means that the attorneys are generally well aware that there is a good chance they will not be able to get as favorable a result at trial as their client is hoping for. […]