Conflict Resolution

Advanced Problem-Solving Strategies

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Has the rise of ADR affected the way advocates prepare and handle cases, or can we expect attorneys to continue their customary practices of pleadings, motions, discovery and trial preparation, until the day comes when the cases settle in spite of, or as a result of, those efforts? A lot of time and effort is spent on pre-trial activities that are not of much benefit even if a case goes to trial, and are even more wasteful if the case is settled. Is there a way of conducting litigation that might avoid some of that wasteful activity and lead the parties on a more direct route toward a negotiated resolution? I’m not talking about what Professor Marc Galanter described years […]

I thought I might lay off politics for a while after the election. But politics is not taking a moment’s rest. And politics serves as such a good metaphor for mediation, I can’t resist discussing it. Take, for example, the politics of the upcoming budget wars, of which we are now hearing the opening salvos. This debate promises to provide a great example of the dynamics of a very public negotiation, one that will affect all of us. We can think of the election as a mechanism that affected the strength of each side’s bargaining position. We can also think of it as a message from the voters to their representatives, but that message is already subject to multiple interpretations. […]

I posted something on my political blog about two competing ballot propositions before California voters this November. Both aim to improve the state’s financial condition and raise money for education, but each attacks the problem in a somewhat different way. One is sponsored by the governor and the other by a private organization. Polling has indicated majority support for the governor’s proposition, but now there may be a real danger that both propositions go down to defeat. Why? Because the competition between the two measures has sparked negative messages by each side against the other. As soon as we have two ideas before us on how to fix a problem, we naturally start comparing them to decide which one we […]

My prior post on this topic attempted to refute one of President Obama’s critics from the left, Thomas Frank, who is skeptical of the value of bi-partisanship. Critics on the right seem even more strongly attached to the notion of politics as struggle, rather than as an effort to reach accommodation. According to Ramesh Ponnuru, a writer for National Review, President Obama is kidding himself if he thinks that after winning re-election, the Republican Party is likely to become more cooperative than they have acted during his first term. If Obama wins re-election, the Republican Party will react by moving right, not left. It will become less likely to compromise with Obama, not more. Ponnuru reaches this conclusion based on the likelihood that President Obama […]

Is a willingness to negotiate a sign of weakness? That seems to be the thrust of the critique of Thomas Frank, the latest prominent leftist critic of the Obama administration. Frank charges that Obama gave away too much to the right, because he stressed the importance of bi-partisanship, when he should have been fighting harder on substantive issues, such as punishing Wall Street bankers, or achieving more economic stimulus. Frank seems to think because the president placed the ideal of bi-partisanship above these other policy goals, he was forced to concede too much to the opposition. The idea is that Obama’s emphasis on bi-partisanship makes him a bad negotiator. Frank thinks that if you announce agreement with them in a cooperative way, that will make […]