Conflict Resolution

Advanced Problem-Solving Strategies

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A new study published by the American Psychological Association asked lawyers six to twelve months in advance of trial to set their minimum goals for the trial outcome and their predicted chances of reaching that goal.  The largest percentage of lawyers who participated in the survey fell short of their goals, and also expressed over-confidence in their chances of reaching their goals.  Interestingly, the lawyers’ level of experience did not produce better predictive results.  Also interestingly, women lawyers were somewhat closer to the mark in their predictions than their more over-confident male brethren. I don’t find these results surprising at all.  Lawyers must project confidence to their clients, otherwise clients will doubt whether their lawyer is on their side.  Lawyers […]

On Thursday, the California Second District Court of Appeal decided Porter v. Wyner, reversing a ruling that a new trial was required in a dispute between lawyer and client, because the original trial had included testimony about attorney-client communications in the context of a mediation.  This opinion seems to go further than the Cassel case,  in which attorney-client communications outside the presence of the mediator or the opposing party were held unprotected by mediation confidentiality.  The Porter court held that even though attorney-client communications might occur during or as part of the mediation process, they are not considered to have taken place “for the purpose of, in the course of, or pursuant to” the mediation. Evidence Code § 1119. As […]

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. […]