Conflict Resolution

Advanced Problem-Solving Strategies

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Most lawsuits end by settlement. Mediation is increasingly being relied upon as the court’s preferred mode for reaching a settlement. Therefore, instead of being thought of as an adjunct to the “normal” litigation process, mediation needs to be better integrated into the standard procedure for processing lawsuits. Let’s start with the courthouse itself. Since most cases are never going to be resolved by trial or any other sort of courtroom procedure, why do we even call it a courthouse? Why not call it, say, a dispute resolution center? Why start the process by filing a complaint? Would it not make more sense to initiate a dispute resolution proceeding by serving one’s adversary with a paper called something like a “notice […]

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 […]