Conflict Resolution

Advanced Problem-Solving Strategies

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If I were to write a book on my experiences practicing law, I might use the above title. It has multiple meanings. “From litigation to conflict resolution” describes what happens with most contested legal disputes; they tend to follow a trajectory from an adversarial to a more cooperative process. An aggrieved party starts with a desire to punish, or seek justice against, the opposition that they believe has wronged them. The accused party reacts defensively. Both sides tend to contest every assertion made against them. They create new grievances. They demand that the court sanction the other side. Whether or not the court gives them satisfaction, however, eventually they will in most cases reach a negotiated resolution of the dispute, […]

For those who still think that litigation must always be conducted in an adversarial manner–that litigants must oppose anything suggested by the other side, and bring every dispute before the court for resolution–consider that the courts are telling you otherwise. It’s not just that the courts routinely encourage settlement, and discourage trials; it’s also that they have changed the rules to compel efforts at negotiating rather than seeking judicial resolution of problems that occur during the course of a lawsuit. It’s almost as though the courts don’t believe in the process they are designed for, because they are requiring you to engage in a different process first. Meet and confer requirements have been around for a long time with respect […]

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 […]

The reformers who drafted the Federal Rules of Civil Procedure in the 1930’s thought that if we could only get rid of the complexities of ancient pleading practices, and liberalize discovery, cases could be fairly adjudicated on their merits instead of being won or lost on technicalities. Their intent can be gleaned from Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” To a large extent, the simplified rules we have been living with for so many years must be judged a success, simply because they have stood the test of time. On the other hand, hardly anyone would say that Rule 1 accurately […]

The state of Maryland commissioned a cutting edge research project that has succeeded in measuring the effectiveness of the state’s court-connected ADR program in limited jurisdiction courts. This study attempted to do much more than track settlement rates achieved through the program; the researchers also assessed the satisfaction of participants with the system, comparing the results with control groups of litigants who did not utilize the program. They found that participants who achieved settlement through ADR processes were most satisfied with court than those whose cases were adjudicated by the court. Even more tangibly, those cases were more than 20% less likely to return to court for enforcement or other follow-up action, a finding of considerable cheer to court administrators […]