Conflict Resolution

Advanced Problem-Solving Strategies

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More evidence that the practice of law has changed in fundamental ways: At a panel presentation this week at the SCMA Employment Mediation Institute, Ann Kotlarski, who represents employers and Curt Surls, who represents employees, both agreed that they prefer to resolve employer-employee disputes without litigation if possible. Surls said that he always sends detailed demand letters setting forth the factual background his client has presented, as well as the legal basis for his client’s claims, before filing a complaint. These letters usually do not contain specific monetary demands, but  do include an invitation to mediate the dispute. Kotlarski also initiates attempts at early dispute resolution. She always calls the plaintiff’s attorney as soon as she gets a complaint or […]

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 quote of the week might be from Republican Congressman Marlin Stutzman of Indiana who summed up his side’s dilemma last Tuesday as follows: “We’re not going to be disrespected. We have to get something out of this. And I don’t know what that even is.” How many mediators have heard parties make similar statements? I’m guessing most have. The inability of Democrats and Republicans in Congress to reach an agreement that will allow the government to continue to operate and pay its bills, something both sides presumably want, serves as a good illustration of how conflict itself can paralyze the parties trapped in it, and can prevent parties even from accomplishing things they might be able to agree on. We could […]

I thought I might lay off politics for a while after the election. But politics is not taking a moment’s rest. And politics serves as such a good metaphor for mediation, I can’t resist discussing it. Take, for example, the politics of the upcoming budget wars, of which we are now hearing the opening salvos. This debate promises to provide a great example of the dynamics of a very public negotiation, one that will affect all of us. We can think of the election as a mechanism that affected the strength of each side’s bargaining position. We can also think of it as a message from the voters to their representatives, but that message is already subject to multiple interpretations. […]

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 […]