Conflict Resolution

Advanced Problem-Solving Strategies

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The California Law Revision Commission has issued its draft recommendations for an amendment to the Evidence Code carving out a new exception to mediation confidentiality. This project has been about four years in the making, and was originally spurred by concern over the California Supreme Court’s decision in the Cassel case, which excluded evidence in support of a subsequent malpractice case, of alleged attorney misconduct in inducing their clients to settle a case in mediation. The Commission’s report, which runs to 158 pages, reflects a thorough process, but one that is probably going to be greeted with fear in the mediation community. Many mediators support an “absolute” exclusion of any evidence of statements made by anyone in the course of mediation, […]

At the ABA Dispute Resolution Conference, I had a chance to hear a panel of experts from around the world talk about different ways of viewing the mediator’s role in helping achieve a just result for parties using the process. In China, which has a couple of thousands of years of experience using variants of mediation, the mediator’s role in this regard is viewed very differently from the west, where the practice is of relatively recent vintage. There, mediators have the power, even the duty, to make sure that the result accords with legal norms, and can even prescribe a different outcome from one the parties express. In countries such as the UK, Australia, and the US, on the other […]

I had a chance at the SXSW Interactive Conference this week, to attend an introductory session on how the principles of the martial art of Aikido can be applied to resolving workplace and other conflicts. The presenters used the symbols of sword, shield and withdrawal to illustrate three basic ways of initiating or responding to conflict. For example, someone pushing toward your center can be met with a counter-thrust, or a block, or by running away. When we practiced learning how to recognize these attacks and responses, it almost felt like a game of rock-paper-scissors. Our choices might be dictated by our own instinctive approaches to conflict, or by our perceptions of what would work best against our opponent. Aikido […]

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 […]

Problems that arise in running a family business sometimes manifest themselves as legal claims. That seems obvious when the company gets sued by an employee or vendor or customer, but can also occur when the other owners choose to invoke the courts when they suspect another family member of financial improprieties or mismanagement. Anger at the alleged offender can then fuel the fires of litigation, turning the conflict into a costly experience that can not only destroy the business, but can also destroy the family. And litigation may never resolve the underlying causes of the conflict, which could stem from sibling rivalry, parental favoritism, or some form of abuse. Those underlying causes of conflict can’t always be resolved, but they […]