Conflict Resolution

Advanced Problem-Solving Strategies

Read The Latest Post

Although the budget crisis in California has lasted for years, the state court system has until now managed to avoid the worst possible scenarios. Courts have survived these hard times by depleting their reserves and diverting their capital budgets for operations. Having exhausted those strategies, and with no prospect of restoration of full funding in sight, the courts have finally had to take more drastic actions to grapple with huge funding shortfalls. Recently, the Los Angeles County Court system announced their plan to deal with budget cuts by closing 10 regional courthouses, including the branch courthouses in Beverly Hills, Malibu, Pomona, and Whittier. These facilities may end up staying open only for such purposes as paying traffic tickets. Their courtrooms […]

(Wikimedia Commons) Judge Jed Rakoff of the Southern District of New York today rejected a proposed consent judgment and  $285 million settlement of an SEC enforcement action against Citigroup. The SEC alleged that Citigroup had defrauded investors in a fund comprised of toxic assets, but was willing to accept a monetary settlement and injunction without requiring Citigroup to admit the truth of these allegations. In this case, the court disapproved this longstanding practice, in its words, “hallowed by history, but not by reason.” The court’s opinion determined that the proposed Consent Judgment “is neither fair, nor reasonable, nor adequate, nor in the public interest. Most fundamentally, this is because it does not provide the Court with a sufficient evidentiary basis […]

Congratulations to my fellow SCMA board member, and new president Barbara Brown, for pulling off a very successful SCMA fall conference at Pepperdine this weekend! Forrest (Woody) Mosten led a presentation yesterday called Mediation in the Year 2030, imagining what the world of ADR might look like 20 years from now. Apparently, in the courthouse of the future, there will be 10 mediation rooms for every traditional courtroom. All judges and staff will be trained in mediation. Mediators will be credentialed, and highly skilled. Clerks will be helpful and friendly, seeing themselves as consumer representatives. Many disputes will not even enter the courthouse. Mediators will be the first point of contact in resolving many disputes, and will assemble the necessary […]

Often the judicial system, despite its flaws, is viewed as at least attempting to operate in a just and logical way, according to rules that we understand and agree upon. The hallmark of an informal dispute resolution system, on the other hand, is that it has no rules. It is seen as emotional as opposed to logical, and is also viewed as somehow cheating justice. When we look more closely at the human beings who use and operate the traditional justice system, we might have to question these stereotypes. I spent most of the past three days in continuing legal education on mediation, including moderating a panel this morning at an SCMA program on employment mediation. At one of the […]

Justice Scalia is known for his theory of interpreting the Constitution by reference solely to the text in light of the meaning that the drafters supposedly intended at the time they wrote it. In his book A Matter of Interpretation, Scalia has defended his approach as follows: Of all the criticisms leveled against textualism, the most mindless is that it is formalist. The answer to that is, of course it’s formalistic! The rule of law is about form . . . A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime and the murderer has confessed in writing and on videotape. We nonetheless insist that before the […]