Conflict Resolution

Advanced Problem-Solving Strategies

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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 […]

Neutrality is a cherished concept in mediation, but the term is interpreted differently by different mediators. Some take it to mean being strictly impartial and fair toward both sides in a dispute, in the way that a judge should not let his or her biases affect the outcome, or show favoritism toward one side or the other. I take it to mean being indifferent toward the outcome of the process, leaving the parties to achieve a resolution acceptable to each side, but assisting both sides in satisfying their interests to the greatest extent possible. To do that mediators play a different role than judges or arbitrators, at times coaching one side or the other on their negotiating tactics, and at […]

Congratulations to outgoing president Robyn Weinstein, incoming president Floyd Siegal, conference chair Hass Sadeghi, executive director Anne Sawyer, and all the other volunteers who helped create the Southern California Mediation Association’s successful fall conference last weekend. The conference’s theme, Conflict Revolution, made clear that our organization is moving well beyond the goal of helping people learn to mediate litigated disputes. Our goal is to change the world! Ken Cloke This goal was emphasized not only in panels such as the one described in my previous post that addressed new roles for mediators and mediation, but was also addressed in panels on critical race theory, LGBT rights, and other timely topics. Peter Robinson kicked off the conference with what amounted to […]