Conflict Resolution

Advanced Problem-Solving Strategies

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At a CLE program I attended last week put on by the LA Superior Court and hosted by Pepperdine Law School, two of the panelists, Max Factor and Peter Robinson, got into something of a debate about how to handle an ethical situation. The topic concerned the mediator’s responsibilities when the mediator learns that one party to a mediation has slipped a potential land mine into a proposed agreement. Suppose the party inserting such a provision admits their deceitful intent and specifically instructs the mediator not to tell the other side of the land mine’s existence. Is the mediator bound to keep that information confidential? Perhaps, but to avoid being a party to a potential fraud, the mediator can at […]

When we use a phrase like “alternative dispute resolution,” we are usually referring to alternatives to bringing a lawsuit. Those who practice in the ADR field are often trying to persuade litigants to give up the right to sue, on the ground that the alternatives to court are better, cheaper or faster. Should ADR advocates be concerned when parties are compelled to give up their right to go to court even before a dispute arises? My answer would be yes, because I think arbitration or mediation should be freely chosen by the parties, not forced on them. And also because the word “alternative” loses all meaning if it is the only alternative. The right to jury trial should remain available […]

One of the touted benefits of ADR is that it allows parties to design their own dispute resolution process specially suited to their needs. Problems can arise, however, if a court is subsequently called upon to try to figure out what to call the process the parties have invented. A court might need to do that to decide what rights and obligations the parties have assumed under their process. A recent Federal Circuit case, Kimberly-Clark v. First Quality Baby Products, provides a nice illustration of this problem. (Thanks to the Disputing blog for bringing it to my attention.) In a series of patent infringement disputes between two consumer products giants Kimberly-Clark and Proctor & Gamble, the parties crafted a series […]

In talking recently with a friend and fellow attorney about the kinds of mediators most lawyers and litigants are looking for, I realized that most of what passes for mediation these days is not mediation as I would define it, at all. First there is arbitration-style mediation.  You go to a retired judge or similar knowledgeable authority figure. One side presents their case to the mediator.  Then the other side presents their case.  Then the mediator tells you what he thinks the case is worth. The only difference between that style of mediation and arbitration is that the parties are free to take the mediator’s opinion or leave it. But they have never really communicated with each other, and they […]

I spent the day in the jury room at LA Superior Court downtown today, doing my one day of service.  The chairs were comfortable, the TVs were (thankfully) off for some reason, the wifi was free, and the court personnel were friendly and almost entertaining.  The court makes the process about as pleasant it could be for an experience that feels like being institutionalized for almost 8 hours.  And the best part was that I did not get called to a single courtroom all day, so was excused without even being subjected to voir dire.  A large proportion of my fellow jurors also escaped without being asked to serve.  This reminded me that the beauty of jury trial sometimes is […]