Conflict Resolution

Advanced Problem-Solving Strategies

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Thanks to the Consumer Attorneys Association of Los Angeles and the Association of Southern California Defense Counsel for putting on an informative program tonight detailing changes about to take place in the LA Superior Courts due to budget cuts. Thanks especially for the plug provided for the Southern California Mediation Association’s program still in development to provide a referral source for mediators. SCMA’s program is intended to make up to some extent for the imminent abandonment of ADR administrative services by the courts. Neither the court nor SCMA are going to be able to make up entirely for the loss of the court’s effective procedures for referring cases to mediation. The court has apparently decided, however, that it can no […]

George Santayana said that those who cannot remember the past are condemned to repeat it. In the business of resolving legal disputes, we encounter parties who remember the past all too well. Each side might remember the past in a somewhat different way, but both sides can give a detailed recitation of every event in the past that created the dispute. Yet they repeat it anyway. What I have observed during a long time spent guiding clients through the progress of lawsuits, are the opportunities that lawsuits provide for parties to repeat exactly the same behaviors that created the original conflict. Before they filed suit, parties might have a dispute about performance of a contract, or some claimed wrongful action […]

Mediation is often thought of as a one-time event in the history of a litigated case; best designed to take place after the parties have done an adequate amount of discovery, have a pretty good idea of how the case might play out at trial, and are sufficiently tired of paying their lawyers’ bills that they are receptive to putting an end to the dispute.  The mediator is then expected in a few hours to unravel a mess that may have taken years to construct, and that oftentimes seems to move further from resolution after months of litigation. What would happen if a mediator were to get involved before the case is generally considered “ready” for mediation?  I had a […]

A hot topic in the litigation field during these bad economic times is how to reduce litigation costs. Numerous articles and discussions have appeared about alternative billing or staffing arrangements that can save clients money, presumably by reducing the amount of time spent on activities that do not advance cases toward trial. I agree that billing by the hour sometimes creates perverse incentives for attorneys, just as it does in any profession that bills by the hour or by the procedure. I also agree that over-staffing and engaging in unnecessary work drives up legal bills. But I also think that discussions about litigating more efficiently sometimes miss the larger point. The best way to reduce litigation costs is not to […]

I posted comments on my litigation blog on a report issued this spring by the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System, which recommends a number of reforms of the Federal Rules of Civil Procedure, chiefly concerning limitations on discovery. This same report gives but a passing nod to alternative dispute resolution. (pp.21-22) The trial lawyers who produced this report are willing to consider what they themselves describe as “radical” changes to the discovery rules, as well as numerous other reforms. Yet, while they recognize the value of mediation, their support for it is lukewarm at best. Although the report recommends that courts raise the possibility of […]