Conflict Resolution

Advanced Problem-Solving Strategies

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Parties in conflict may face a choice among various processes for conflict resolution–litigation, arbitration, mediation, or some other formal or informal process. Attorneys are accustomed to presenting their clients with this array of options, and explaining the pros and cons of each. But the choice of process may turn out to be less important in many cases than the choice of approach to resolving the conflict. Parties choosing litigation, for example, are likely to enter that process with an adversarial mindset, filing every possible motion, and disputing every assertion made by the other side. This is the way many of us–including myself–were trained to litigate. But litigation can also be conducted with a more cooperative attitude, and nowadays courts tend […]

For those who still think that litigation must always be conducted in an adversarial manner–that litigants must oppose anything suggested by the other side, and bring every dispute before the court for resolution–consider that the courts are telling you otherwise. It’s not just that the courts routinely encourage settlement, and discourage trials; it’s also that they have changed the rules to compel efforts at negotiating rather than seeking judicial resolution of problems that occur during the course of a lawsuit. It’s almost as though the courts don’t believe in the process they are designed for, because they are requiring you to engage in a different process first. Meet and confer requirements have been around for a long time with respect […]

More evidence that the practice of law has changed in fundamental ways: At a panel presentation this week at the SCMA Employment Mediation Institute, Ann Kotlarski, who represents employers and Curt Surls, who represents employees, both agreed that they prefer to resolve employer-employee disputes without litigation if possible. Surls said that he always sends detailed demand letters setting forth the factual background his client has presented, as well as the legal basis for his client’s claims, before filing a complaint. These letters usually do not contain specific monetary demands, but  do include an invitation to mediate the dispute. Kotlarski also initiates attempts at early dispute resolution. She always calls the plaintiff’s attorney as soon as she gets a complaint or […]

The ABA Dispute Resolution conference, held this year in New York City, presents an interesting mix of programs on mediation, arbitration, negotiation and collaborative practice. The conference manages to combine these fields, even though the cultures of mediation and arbitration don’t always mesh very well; in fact they sometimes seem like opposites. But practitioners in both fields seem to get along. What they have in common is the desire to avoid litigation. Having a common enemy makes friends of us all. Thus, at one of the panels I attended, in-house counsel acknowledged that they require employees to sign arbitration clauses so that the company can avoid the burden and expense of class action lawsuits. Mediation or arbitration of employment disputes […]

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 […]