Conflict Resolution

Advanced Problem-Solving Strategies

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The other day, I was trying to explain to another attorney why I’ve grown to dislike the term “litigation,” even though it’s the most commonly-accepted way of describing most of my law practice. I don’t have any objections to filing or defending lawsuits, and I’m also proud to call myself a trial lawyer for those unusual cases that finally make it to trial. But to me, “litigation” connotes a lot of activity in between that is not only wasteful, but actually counter-productive to the goal of resolving the dispute (I’m thinking of discovery disputes in particular, but the impulse to contest everything the other side is saying can arise in almost any procedural situation). This litigious mindset is counter-productive not […]

Here I want to talk about the emotional component of trials: both the agony and the ecstasy involved in this climactic phase of litigation. These emotions are stirred up in part by the incredible amount of work that needs to get done in the days and weeks leading up to trial, days that are consumed with pre-trial briefs and motions, jury instructions, witness and exhibit lists, re-reading the documents, preparing witnesses, etc. Time and cost considerations seem to go out the window. Whenever I am getting ready for trial, I seem unable to think about anything else. I disappear from family and other obligations. 12 Angry Men It’s not only the massive amount of preparation that turns litigants and lawyers […]

I was interviewed the other day for a possible article on court-ordered mediation. In discussing this topic, it’s hard to avoid talking about such questions as settlement rates in various kinds of programs, or how mediation programs affect the workload of the courts. We are looking for statistical measures of the success of mediation as compared to other means of resolving cases in court (settlement conferences with judges, arbitration, neutral evaluation, lawyer-initiated settlement discussions, disposition by motion, trial, etc.) That also tends to be the way that judges measure the value of court-connected or private mediation programs. We can’t help but wonder which method gives you the most bang for the buck. But those kinds of measures only tell part […]

While not very impressive grammatically, the statement published today on Tesla’s website that “all our patent are belong to you” might have some earthshaking consequences in the intellectual property world. Tesla has decided that in the interest of developing an electric car market and battery infrastructure, they will no longer bring patent infringement lawsuits against anyone using their electric car technology in good faith. Perhaps there is an element of “save the world” altruism in this gesture, as Tesla claims to be motivated by a desire to get all gasoline-powered vehicles off the road. And Tesla acknowledges that they themselves can’t possibly build enough electric cars to accomplish that goal. But Tesla’s new policy also seems like a remarkable recognition that the […]

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 […]