When we meet someone for the first time, we immediately start forming impressions of them. It takes a lot to change that perception, even if they turn out to be quite different from the way we initially perceived them. Similarly with conflict. The way in which a controversy is framed does much to affect the way parties subsequently see the dispute. Bombet When a prospective client brings their problem to a lawyer, the lawyer is trained to sift through the client’s story and pick out all of the potential legal claims. Much of the client’s story is irrelevant to the lawyer, even though it may be important to the client. The lawyer then frames the story as an accusation that […]
In a prior post, I suggested that in the absence of a thorough re-vamping of the rules of civil procedure, parties and practitioners should try to invent new ways to resolve disputes outside the court system, How exactly would that work? Let’s start by considering how to open a case, both within and outside the court system. If you’re having a problem with your neighbor/boss/business partner/stranger, etc., you can’t simply ask the court to help you resolve that conflict. Instead you must file a complaint setting forth a cognizable legal claim. You must include all the elements of the claim. You must have damages or an entitlement to equitable relief. You must identify yourself as the victim and the other […]
The ink is barely dry on the breakthrough agreement reached this week with Iran, requiring that country to eliminate most of its nuclear weapons capacity in exchange for the lifting of economic sanctions, and many critics are already out in full force decrying the agreement. It seems remarkable that they could be so sure of their opposition without having had much time to read or study the text, or consider carefully whether this deal is better than the alternative of continued conflict. (In previous posts–here and here–on this topic, I outlined the way in which I think any negotiated agreement should be evaluated, not by comparing it to the outcome each side would have preferred, but instead by comparing it […]
Here is Secretary of State John Kerry reporting on the progress of negotiations with Iran. His statement should sound familiar to a lot of mediators: on continuing negotiations so long as progress is being made, on the importance of building an agreement that will last, on the need to avoid being rushed or constrained by arbitrary deadlines, and at the same time on recognizing that difficult decisions need to be made soon if agreement is to be reached.
A mediator I know was explaining his system of taking and cataloging notes from his mediation sessions, to help him learn what was working and not working. He writes down phrases he has used that seem particularly effective, and keeps them on note cards. And he sometimes thumbs through his stack of cards during subsequent mediations to see if he can find something useful. According to this mediator, impasse does not exist. Instead, when parties get stuck, he prefers to tell them only that the dispute probably will not settle that day, preserving the hope that it will settle at a later time when the parties are ready. I have also found that the concept of impasse is not particularly […]