Conflict Resolution

Advanced Problem-Solving Strategies

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Attending the 13th International Online Dispute Resolution Forum, being held at Stanford Law School, the first time the conference has taken place in the United States, offers a glimpse into the future of conflict resolution. Ethan Katsch, dubbed the “father” of online dispute resolution, started the day by telling us that while it began as an outgrowth of ADR, ODR is developing into a distinct field with its own expectations, assumptions and values. I think this might be true, but I’m skeptical based on the evidence so far. Online tools are still mostly applied to allow us to conduct traditional litigation, arbitration, mediation, or negotiation, in more efficient ways. As a number of speakers told the group, traditional practitioners are […]

An article in the spring issue of the ABA’s Dispute Resolution magazine (Maurits Barendrect and Christopher Honeyman) sets out some daunting statistics on the overall size of the market for ADR services in this country. The number they throw out is $500 million in billings annually. That sounds like quite a lot, but it includes arbitration as well as mediation. And in comparison to the market for legal services, the ADR market is still minuscule, approximately equal to the annual billings of the 50th largest U.S. law firm. Moreover, the top two commercial providers, the AAA and JAMS, account for more than two thirds of this market. For someone hoping to make a living, or even a partial living, as a […]

At the employment law program mentioned in my previous post, we were honored to hear a talk from Phyllis Cheng, the director of the California Department of Fair Employment and Housing (“DFEH”). Ms. Cheng walked through the process of resolving employment claims in the department (outlined in the flow chart below). For cases not processed by issuing an immediate right to sue notice, note that the department offers numerous opportunities to steer those cases to a negotiated resolution (generally denoted by the smooth round-bordered boxes), as opposed to a judicially or administratively determined outcome (the sharp-edged boxes), and maintains a staff of 11 mediators for the purpose. In all, the number of cases resolved consensually far exceeds the number that […]

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 […]

Online dispute resolution was developed to create a more efficient system than the courts are capable of providing, especially for relatively small cross-border and internet transactions. Courts are simply too expensive and too cumbersome to resolve these kinds of conflicts. The nature of online communications allows for a more flexible conflict resolution process, one that is not tied to any one jurisdiction’s legal rules and procedures. The vast majority of these online disputes are resolved by informal means, facilitated by the speedy communications allowed by the internet. Is ODR therefore a form of ADR? Not necessarily. Remember that even the traditional, physical courthouse steers most cases toward informal resolution, whether by direct negotiation between the parties, settlement conferences with a […]