Conflict Resolution

Advanced Problem-Solving Strategies

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The new Cold War thriller Bridge of Spies, based on the true story of the prisoner exchange for captured U2 pilot Francis Gary Powers, shows an attorney living up to the highest standards of advocacy as well as negotiating ability. The movie’s lawyer-hero, James Donovan (played by Tom Hanks) is first seen as a typical insurance company lawyer making clever legal arguments about whether an accident involving five motorcyclists should be considered a single “incident.” Even when doing that, however, Donovan is able to impress by tying those arguments to a higher purpose. When Donovan is asked to defend accused Russian spy Rudolf Abel, he takes his ethical responsibilities, and his devotion to the Constitution and to his client’s interests, […]

The California State Bar Standing Committee on Professional Responsibility and Conduct has issued a proposed opinion attempting to draw the line between unethical misrepresentations during negotiations, and permissible “puffing.” Using this distinction, false statements about, as examples, the existence of favorable witnesses, or about the amount of a party’s earnings, or about policy limits, would all fall on the unethical side of the line, and would subject an attorney making them to potential discipline. On the other hand, false statements about a party’s “bottom line” of settlement authority, or about a party’s willingness to litigate or its plans to file bankruptcy, would be considered mere “puffing,” basically the kinds of lies that parties expect the other side to tell during […]

At a program I participated in this week (my part is summarized in the two posts below on choosing a mediator), co-sponsored by the Santa Monica Bar Association, one of the panelists, mediator Mark Fingerman, gave an informative presentation on mediation ethics. The problem of assuring that mediations are conducted in a fair and ethical manner is complicated by strict protections for mediation confidentiality that exist in California. While confidentiality is generally agreed to be necessary to the process, prohibitions against introducing evidence of misconduct alleged to have occurred during mediations can potentially give free rein to attorneys–and mediators–to pressure or deceive parties into agreeing to settlements to which they might not have agreed otherwise. In fact, mediation seems in […]

I’ve finally been catching up on the first season of the TV series House of Cards. The hero, House Majority Whip Frank Underwood, played by Kevin Spacey, is a ruthless and cynical politician interested in obtaining power and using it. He repeatedly gets the better of his adversaries by his willingness to resort to lies and tricks, implying that such unscrupulousness is necessary to get ahead in politics, and that those who are unwilling to resort to underhanded tactics are going to be left behind. It’s a popular view of negotiation in general, that successful negotiators need to use trickery and deception to get the better of their adversaries on the other side of the table. The trouble is that […]

Over the past year, I participated in a committee formed by the Southern California Mediation Association, and chaired by SCMA past president Barbara Brown, to study the question of mediator certification or regulation. We started our work without any preconceived agenda, knowing only that our organization had opposed a proposal to have mediators regulated by the California State Bar. We were against that, but we did not yet know what we were for. We knew that there were a wide range of views on this topic within our own organization, and also learned that this issue had stymied bigger organizations that ours, with the ABA Dispute Resolution Section as well as the Association for Conflict Resolution both unable to reach […]