Conflict Resolution

Advanced Problem-Solving Strategies

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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 […]

Reading through some of the twitter comments that started popping up immediately after last night’s unusual World Series game, it wasn’t difficult to figure out which were written by Red Sox fans, and which by Cardinals fans. (For those who missed it, the Cardinals won in the bottom of the ninth when runner Allen Craig was called safe at home, even though he was clearly tagged out, because Craig had tripped over the legs of the Red Sox third baseman after rounding third base.) Obstruction is an obscure and complicated rule in the baseball rule book, but it didn’t take long before hundreds of “experts” started offering their interpretations. Everybody was pulling out the same rule book, but partisans on […]

Yesterday I had a chance to help train mediators for a California Lawyers for the Arts program that provides  mediation and other ADR services for artists. Calfornia Lawyers for the Arts also runs a well-developed lawyer referral program. What was interesting to me about the group’s ADR program is the separation they try to maintain between legal services and ADR services. They take care to screen new cases to determine whether the client needs legal advice or resolution of a dispute, and they instruct the program’s mediators not to give legal advice during mediation sessions, instead only to suggest to participants that they consult an attorney if they feel they need legal advice. In mediation parlance, it’s a facilitative, rather […]

Kenneth Feinberg was the keynote speaker at the SCMA fall conference yesterday, where we presented him with the Cloke‑Millen Peacemaker of the Year Award. Feinberg gave a fascinating talk on the dilemmas involved in allocating compensation to victims of such famous disasters as the BP Gulf Oil spill, the 9/11 attacks on the World Trade Center and Pentagon, and the recent shootings in Aurora, Colorado. In each case, Feinberg was largely successful in avoiding protracted litigation and compensating victims relatively quickly, using criteria that he and his team largely had to invent. Even so, few victims of these disasters chose to go to court after taking the route of an established compensation scheme, even when they retained that option. Feinberg […]

Lawsuits present two competing versions of events, or at least two different interpretations of the same events. In most cases, that just means that the two sides remember those events differently, or interpret their significance differently. Some lawsuits, however, give the fact-finder no alternative but to find that one side is lying and the other side is telling the truth. I mediated a couple of cases in the latter category recently. One involved a claim of forgery. Another involved a claim that a car accident had been staged to defraud the insurance carrier. These cases made me think about the different methods we use to determine which side is telling the truth in litigation, and in mediation. Trials contain a […]