Conflict Resolution

Advanced Problem-Solving Strategies

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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 […]

As he has done since the beginning of his campaign, Barack Obama likes to talk about a new kind of politics in which people sit at the same table and talk to one another instead of shaking their fists at one another. Here he is this week bragging about bringing together different players in both the energy debate and the health care debate. If these initiatives bear fruit, do they herald a new dominant mode of problem-solving? Does President Obama reject the whole idea of dialectics that has been so influential in political philosophy, in favor of more positively-reinforcing ways of achieving change? Can he really get the political system to work in this new way? The rise of mediation […]

Most lawsuits end by settlement. Mediation is increasingly being relied upon as the court’s preferred mode for reaching a settlement. Therefore, instead of being thought of as an adjunct to the “normal” litigation process, mediation needs to be better integrated into the standard procedure for processing lawsuits. Let’s start with the courthouse itself. Since most cases are never going to be resolved by trial or any other sort of courtroom procedure, why do we even call it a courthouse? Why not call it, say, a dispute resolution center? Why start the process by filing a complaint? Would it not make more sense to initiate a dispute resolution proceeding by serving one’s adversary with a paper called something like a “notice […]

There seems to be a raging debate in the mediation community about the usefulness of joint mediation sessions vs. separate caucus sessions. Many mediators keep the parties and their attorneys in separate rooms almost from the outset. They do this to minimize animosity, and to avoid driving the parties further apart with hours of venting, accusations and counter-accusations. They do it because the parties and attorneys are often impatient to cut to the chase of negotiations, and feel no need to exchange information they already know too well. Other mediators believe there is a value in attempting to mend a broken relationship, or that the parties may need the cathartic experience of confronting each other and listening to each other […]