Conflict Resolution

Advanced Problem-Solving Strategies

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When we meet someone for the first time, we immediately start forming impressions of them. It takes a lot to change that perception, even if they turn out to be quite different from the way we initially perceived them. Similarly with conflict. The way in which a controversy is framed does much to affect the way parties subsequently see the dispute. Bombet When a prospective client brings their problem to a lawyer, the lawyer is trained to sift through the client’s story and pick out all of the potential legal claims. Much of the client’s story is irrelevant to the lawyer, even though it may be important to the client. The lawyer then frames the story as an accusation that […]

In a prior post, I suggested that in the absence of a thorough re-vamping of the rules of civil procedure, parties and practitioners should try to invent new ways to resolve disputes outside the court system, How exactly would that work? Let’s start by considering how to open a case, both within and outside the court system. If you’re having a problem with your neighbor/boss/business partner/stranger, etc., you can’t simply ask the court to help you resolve that conflict. Instead you must file a complaint setting forth a cognizable legal claim. You must include all the elements of the claim. You must have damages or an entitlement to equitable relief. You must identify yourself as the victim and the other […]

During the 1980’s, when South Africa was in the news all the time, when the divestment movement was in full swing on college campuses and countries around the world were imposing sanctions, when South Africa was being ripped apart by repression and terrible violence, I remember thinking that South Africa served in some ways as a microcosm of the whole world. In that country a small minority of European ancestry was imposing its will on the majority African population, consuming most of the wealth for itself, and adhering to the fiction that the majority population could be confined to a few artificial “homelands.” It was an unsustainable system, but the leaders of South Africa seemed unwilling to yield. I remember […]

As mediation has become more of an accepted and even required step in many lawsuits, expectations and practices of parties involved in litigation seem to have shifted somewhat.  We see a lot of lawsuits filed with the expectation that the filing will eventually lead to a formal settlement conference or a court-appointed or private mediation.  Parties sometimes postpone doing expensive discovery or filing expensive summary judgment motions, with the hope of resolving the case at a mediation conference. If that is the expectation, why even bother with filing the complaint?  Of course filing a complaint serves important purposes like framing the issues, announcing the seriousness of the filer’s intentions, tolling the statute of limitations, and perhaps other purposes.  But if […]

Most lawsuits end by settlement. Mediation is increasingly being relied upon as the court’s preferred mode for reaching a settlement. Therefore, instead of being thought of as an adjunct to the “normal” litigation process, mediation needs to be better integrated into the standard procedure for processing lawsuits. Let’s start with the courthouse itself. Since most cases are never going to be resolved by trial or any other sort of courtroom procedure, why do we even call it a courthouse? Why not call it, say, a dispute resolution center? Why start the process by filing a complaint? Would it not make more sense to initiate a dispute resolution proceeding by serving one’s adversary with a paper called something like a “notice […]