Conflict Resolution

Advanced Problem-Solving Strategies

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The August issue of the California Bar Journal is devoted to the theme of lawyer as peacemaker. In his introduction, State Bar President Patrick Kelly argues that it is time for lawyers to refocus their efforts from advocacy to more of a problem-solving, peacemaking role. The issue includes a number of articles by prominent ADR practitioners helping to illustrate how lawyers can make this transition. The State Bar President’s recognition that it is time for advocates to work to reduce conflict and solve problems rather than exacerbating conflict and causing problems represents a welcome shift. As Kelly states, to the extent attorneys are able to address the need for problem-solving and peacemaking, that can contribute positively to their ability to […]

Don Philbin, a Texas mediator, has developed some amazing software that allows parties and mediators to make the whole negotiation process more rational and predictable. The software is now available at http://ww1.pictureitsettled.com. I’ve heard Don talk about his techniques before, and have borrowed some of his ideas in a few mediations by making crude graphs embodying part of his methods. Basically what you do is ask the attorneys to rank the probabilities of various possible trial outcomes, from the chances of a defense verdict, to some intermediate levels of recovery, to a home run for the plaintiff. Then you can connect the dots by drawing two curves representing each party’s best assessment of the likelihood of a range of possible […]

Last year the California Supreme Court upheld California’s expansive protection for mediation confidentiality to bar evidence of attorney-client communications made during mediation in support of potential malpractice claims against attorneys. In doing so, however, the court practically begged the legislature to consider amending the statute to allow the use of such evidence. A bill has now been introduced in the legislature to do just that. It would amend Section 1120 of the Evidence Code, which already provides some very narrow exceptions to mediation confidentiality, to add this new exception to the general rule of inadmissibility: (4) The admissibility in an action for legal malpractice, an action for breach of fiduciary duty, or both, or in a State Bar disciplinary action, […]

Everybody’s favorite mediator is back for a second season of Fairly Legal, as I’ve learned from the billboards and bus ads showing Sarah Shahi posing with a set of toy lawyers she is about to knock down like dominoes. I have no idea how this theme (if it is one) is going to play out on the show, but I’m a little concerned that it might feed into the common perception that lawyers are the enemies of mediators and the obstacles to settlement. I don’t think that is the case most of the time. By the time cases get to mediation, the parties’ lawyers are often more anxious than their own clients to get the case resolved. They might be […]

I have nothing substantive to add about the ups and downs of seven years of litigation in the Barbie vs. Bratz doll wars case. I’m not going to do an analysis of the legal issues in the case, even though they are somewhat interesting. All I want to do is remind people that this is the sort of thing that happens in litigation. Mattel won a $100 million judgment against its rival MGA a couple of years ago. That judgment was reversed last year, and in a new trial, MGA this week won an $89 million jury verdict against Mattel. In the same case. Was it worth it? MGA may have won the case (of course it’s not over yet), […]