Conflict Resolution

Advanced Problem-Solving Strategies

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A new book by Sephen Goldberg, Jeanne Brett, Beatrice Blohorn-Brenneur and Nancy Rogers presents a concise primer on what participants can expect from the mediation process. Being academics, the authors ground their discussion in theory, starting with an explanation of the differences between conflicts and disputes, as well as an explanation of how disputes can be resolved with reference to power, rights and interests. But the book is much more practical than theoretical, and is fairly free of academic jargon. The heart of it clearly explains the roles of the participants, the mediator, and counsel; through the processes of choosing a mediator, preparing for the mediation, opening the mediation, holding joint sessions and caucuses, reframing the parties’ conceptions, leading the […]

There is a measure on the March ballot in Los Angeles, Measure S, that would among other things force a two year moratorium on most new big real estate development projects in the city. I’m not going to discuss here the merits of this proposal, even though I have definite opinions on the topic. I’m only going to address how our political and legal processes frame decisions. In this case, instead of allowing a healthy public debate over the scale, density and location of new apartment construction, in which we could consider a range of ideas, and perhaps reach solutions that serve a number of competing interests, this ballot initiative now forces use to choose only whether we are for […]

When you look at the literature on negotiating, you tend to find (at least) two schools of thought. One, exemplified by Fisher and Ury’s Getting to Yes and its progeny, is a “win-win” approach that emphasizes communication and exploration of parties’ underlying interests. The other is more of a “win-lose” philosophy that emphasizes getting the upper hand in negotiations and gaining profits for one side at the expense of the other. Some have labeled these as “soft” or “hard” approaches to negotiation. Before trying to evaluate which approach to negotiation has more validity, I should note that there is some overlap between the two camps. An interest-based bargainer might say that being mindful of the other side’s interests does not […]

The wise client approaches the initial consultation with a lawyer with some ideas of what the client is trying to accomplish and with some perspective on his or her own situation. For such clients, the lawyer should be prepared to explain carefully how the process is likely to unfold, and help the client better understand their options. A lawyer can be confident that a wise client will listen carefully and trust the lawyer’s advice. But not all clients are wise. The simple client, for example, will come in for an initial consultation feeling aggrieved and agitated but uncertain what they are trying to accomplish or how to go about it. For example, an individual might believe they have been fired […]

A couple of recent experiences as a consumer of mediation services have made me wonder whether the practice is living up to its full potential. In one case, when the mediator and opposing counsel started talking about what was going to happen at trial, I told them that there was no way the case was going to trial. They already knew I had done my best to avoid engaging in motion practice, discovery or other forms of litigation activity, and they also knew that the cost of taking the case to trial would almost certainly exceed the amount in controversy, and that my clients probably couldn’t afford it. Therefore I didn’t see much point in talking about what was likely […]