Conflict Resolution

Advanced Problem-Solving Strategies

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Parties in conflict may face a choice among various processes for conflict resolution–litigation, arbitration, mediation, or some other formal or informal process. Attorneys are accustomed to presenting their clients with this array of options, and explaining the pros and cons of each. But the choice of process may turn out to be less important in many cases than the choice of approach to resolving the conflict. Parties choosing litigation, for example, are likely to enter that process with an adversarial mindset, filing every possible motion, and disputing every assertion made by the other side. This is the way many of us–including myself–were trained to litigate. But litigation can also be conducted with a more cooperative attitude, and nowadays courts tend […]

Problems that arise in running a family business sometimes manifest themselves as legal claims. That seems obvious when the company gets sued by an employee or vendor or customer, but can also occur when the other owners choose to invoke the courts when they suspect another family member of financial improprieties or mismanagement. Anger at the alleged offender can then fuel the fires of litigation, turning the conflict into a costly experience that can not only destroy the business, but can also destroy the family. And litigation may never resolve the underlying causes of the conflict, which could stem from sibling rivalry, parental favoritism, or some form of abuse. Those underlying causes of conflict can’t always be resolved, but they […]

Collaborative law has firmly established itself in the family law arena, where parties (and attorneys) are often willing to commit in advance to do everything they can to resolve divorce cases out of court. Not so much on the civil side, where the whole idea appears antithetical to traditional litigators. There have been attempts in the past to make civil litigation more, well . . . civil, but the codes that were created in some jurisdictions to encourage more gentlemanly (or ladylike) conduct never seem to get at the root of the problem. The root of the problem lies in the nature of the adversarial system itself, and its tendency to encourage adversarial behavior. More recently, however, it seems that […]

Has the rise of ADR affected the way advocates prepare and handle cases, or can we expect attorneys to continue their customary practices of pleadings, motions, discovery and trial preparation, until the day comes when the cases settle in spite of, or as a result of, those efforts? A lot of time and effort is spent on pre-trial activities that are not of much benefit even if a case goes to trial, and are even more wasteful if the case is settled. Is there a way of conducting litigation that might avoid some of that wasteful activity and lead the parties on a more direct route toward a negotiated resolution? I’m not talking about what Professor Marc Galanter described years […]

Forrest (Woody) Mosten is a mediation trainer, and a prominent collaborative divorce lawyer and mediator here in Los Angeles. I came to his attention when I attended a seminar last year that he led on collaborative law, in which I had some fun playing a somewhat skeptical role. This week I had a chance to meet with Woody to discuss the possibility of a different kind of collaboration–possibly leading to an article or a book–and learned more about Woody’s background as one of the pioneers in developing legal clinics for middle class clients (having been one of the founders of Jacoby & Meyers), as well as in unbundling legal services. We talked about how our different career paths (mine the […]