Conflict Resolution

Advanced Problem-Solving Strategies

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An article in the Harvard Negotiation Program newsletter (summarized here) reflects a common view that mediation and arbitration need to be “sold” more as an alternative to litigation.  In this view, it is seen as a problem that parties to business contracts often do not anticipate the likelihood of conflicts arising in the course of their relationship, and therefore fail to include as often as perhaps they should, clauses providing for alternative dispute resolution in the event of problems.  Because parties fail to anticipate the potential need for ADR, litigation becomes the default alternative when a conflict occurs. This way of looking at a problem–here the problem of choosing a method of resolving disputes–itself reflects a view of the world […]

Whenever an attorney involved in a mediation asks me if their client can be available by telephone, I am usually reluctant to agree.  If the case is important enough to require my personal attention, should it not be important enough to the parties to compel their presence?  After all, it’s their case.  It also seems intuitively obvious–though I’m sure there are studies to back this up–that mediation is more likely to be successful if people take it seriously enough to attend in person, and if they have the opportunity to communicate face-to-face at least with the mediator and preferably with the other side.  Or maybe I just feel that phone mediation, like phone sex, can never be as satisfying as […]

The practice of going to mediation to resolve a litigated dispute has become routine.  Mediation is now viewed as a planned-for stage in the proceedings where the case is likely to get resolved.  The parties file their pleadings, attend a scheduling conference with the judge, perhaps engage in some motion practice, perhaps exchange some written discovery, but often postpone at least some depositions, expecting to settle the case at a scheduled session with a mediator.  This practice seems all well and good–good for the parties, good for mediators.  But maybe it’s too much and not enough at the same time. If all you want to do is settle the case, there are lots of ways to do that without calling […]

Mediation is often thought of as a one-time event in the history of a litigated case; best designed to take place after the parties have done an adequate amount of discovery, have a pretty good idea of how the case might play out at trial, and are sufficiently tired of paying their lawyers’ bills that they are receptive to putting an end to the dispute.  The mediator is then expected in a few hours to unravel a mess that may have taken years to construct, and that oftentimes seems to move further from resolution after months of litigation. What would happen if a mediator were to get involved before the case is generally considered “ready” for mediation?  I had a […]

One of the more interesting courses I took in law school was International Law, which is not a course that everyone takes, because it does not appear to offer much practical value for most lawyers’ careers.  I didn’t see much practical value in it either when I signed up, but found that it got me thinking about the law in a much different way from other law school courses.   What you learn when you study international law is that the system of international law is for the most part not structured as a body of statutes enacted by legislatures, or precedents handed down by judges.  International law is mostly not enforced by police, or by fines, or by prison.  Because […]