Conflict Resolution

Advanced Problem-Solving Strategies

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The reformers who drafted the Federal Rules of Civil Procedure in the 1930’s thought that if we could only get rid of the complexities of ancient pleading practices, and liberalize discovery, cases could be fairly adjudicated on their merits instead of being won or lost on technicalities. Their intent can be gleaned from Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” To a large extent, the simplified rules we have been living with for so many years must be judged a success, simply because they have stood the test of time. On the other hand, hardly anyone would say that Rule 1 accurately […]

About halfway through the new movie Woman in Gold–which tells the story of Maria Altmann’s lengthy legal battle to recover the famous Klimt painting of her aunt from the Austrian government–the parties try to resolve the dispute by mediation. At the mediation, Altmann (played by Helen Mirren) offers to allow the Austrians to keep the painting if they will only acknowledge that it was stolen property (looted from her family by the Nazis), and pay some amount in compensation. It was a framework for negotiations that most mediators would jump at, because if the framework were accepted by the other side, the only thing left to negotiate would have been the amount of compensation. But the Austrian representative refuses even to consider […]

At South by Southwest this week I attended a program on patent reform featuring representatives from both sides in the “patent troll” debate. Though there was disagreement on the nature and extent of the problem, most of the panelists seemed receptive to proposed solutions such as making it harder to get patents issued, imposing stricter pleading requirements, regulating demand letter practices, or allowing fee-shifting to discourage meritless litigation. I wondered, however, whether increasing the size of the hurdles on the litigation track might in some cases only give parties new issues to litigate over. If the cost of litigation is what gives patent “trolls” leverage to demand settlements, then the solution might instead lie in reducing the cost of litigation. Maybe […]

Someone posted a question on an online forum about a divorce agreement reached after two days of mediation. The questioner’s ex-wife wanted to set the agreement aside because some stock options assigned to the husband in the settlement agreement had subsequently skyrocketed in value. The husband was looking for some ammunition that would allow him to retain the full value of these assets. (Almost the exact same situation can be found in the recent California Court of Appeal case of Lappe v. Lappe, No. B255704 (2d Dist. Dec. 19, 2014). In that case, the wife was seeking discovery of financial statements provided by the husband during the mediation, for the purpose of attempting to set aside the mediated property settlement […]

I will be a guest on the Doug Noll radio show on Thursday, February 19, 2015. The program is broadcast over the internet and its website can be found here. In case you miss the program Thursday night, however, I believe it will soon be available on the website. I expect to be talking about the business of mediation, how mediation may be transforming the civil justice system, and whatever else comes to mind. I’m looking forward to the opportunity. UPDATE (3/5/15): It appears the audio file was erased by the web radio station, so my interview is now lost to posterity. Doug promises that we will do another program soon however.