Conflict Resolution

Advanced Problem-Solving Strategies

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Those who take mediation seriously want to encourage parties to participate in good faith, and to prepare properly for mediation sessions, so that the process can achieve maximum benefit. We have to recognize, however, that there can be a tension between the desire to make sure that the parties don’t waste each others’–and the mediator’s–time, and the need for confidentiality, safety and flexibility in making mediation work. In other words, how do you promote the most effective use of mediation without slipping into exactly the kind of rules and sanctions-based world that mediation was designed to escape? Don’t ask the courts to resolve this dilemma, because they don’t see it. Courts are entirely comfortable operating in the world of rules […]

Following up on an earlier post, in which I discussed the frustrations of many mediators with pro bono court-annexed mediation, I want to try to figure out where we should draw the line between cases appropriate for free mediation and cases in which parties should be expected to pay for mediation services.  I suggest that the answer to that question may depend on one’s view of the role of mediation in the judicial system, and specifically on whether mediation should be treated as “public” dispute resolution process to which citizens should be given access in the same way they should be guaranteed access to the courts, or whether mediation should be treated as a “private” system that allows litigants to […]

I read today that the Los Angeles Conservancy got the owners of the Century Plaza Hotel to agree to preserve the key historic features of the hotel in their plan to develop the property.  (My prior post on that dispute is here.)  Coincidentally, I saw a post today on Victoria Pynchon’s blog about a preservation dispute in Dallas, raising the question whether internet comments on newspaper blogs and similar forums can assist in resolving such disputes. Of course public comments can be helpful in putting ideas on the table, and in ascertaining the extent of public support for preservation of an historic landmark, or for the development that threatens that landmark.  But commenting on Victoria’s post  reminded me that what […]

Way back when I served as a law clerk to a federal district court judge, I remember watching a trademark infringement bench trial about to begin. The parties had all their exhibits lined up; they had prepared their experts and their surveys; their attorneys announced that they were ready to proceed. Months before, I had worked on the opinion denying one side’s motion for summary judgment, so I knew that the parties had already invested in a lot of pre-trial proceedings. Before hearing opening statements, my judge advised the parties that he had formed no conclusions yet about which side was in the right. He told the parties and their attorneys that he would try to reach the correct result, […]

A lot of mediators will start off a mediation with the disclaimer that, unlike a judge, they have no power to decide the case. They are merely there to help facilitate a resolution. This strikes me as an unhelpful way to begin the proceedings. It seems better to remind the parties of all of the benefits of mediation that they cannot obtain in court. For example, mediation can provide an opportunity to make arguments directly to the opposing parties, as opposed to making arguments to a neutral party like a judge. Mediation also empowers the parties to craft their own solution to the dispute, rather than placing them at the mercy of a judge. Mediation makes parties the masters of […]