Conflict Resolution

Advanced Problem-Solving Strategies

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I remember reading a piece by a newspaper columnist who described the process by which someone in that field can finally claim to have mastered the trade. The aspiring newspaper columnist starts with a head full of ideas. He might even have rough drafts or outlines for many weeks’ worth of columns in a bottom desk drawer. But after about a year of doing the column, all of those ideas are going to be exhausted, and the columnist will have nothing left in the storehouse to draw from. Around that time, the columnist is going to be facing a looming deadline with no idea what to say. And that is when any newspaper columnist worth his salt begins to prove […]

I received a mediation brief a few weeks ago from the plaintiffs’ side in a contractual dispute. The brief contained a detailed description of the parties’ agreement, a recitation of the elements of each one of the various causes of action in the complaint, a calculation of the damages due under the contract, including precise interest calculations, and an explanation of why attorneys’ fees were recoverable. It also attached the relevant contractual documents as exhibits. Sounds like as much as any mediator could wish for, right? What else would I possibly want to know about the plaintiff’s position? It turned out, however, when I saw the defendant’s brief, that nothing in the plaintiff’s brief was seriously contested. The real problem […]

“Terrorists” is probably too strong a word for the subject of this post, but what else do you call people who threaten to do something incredibly destructive if they do not get their way? I’ll use as an example the Republican leaders like Senator Mitch McConnell who are taking advantage of the fact that the government is at the limit of its borrowing capacity as a lever to try to get their way in ongoing budget negotiations. These leaders know that allowing the United States to default on its obligations would not only raise interest rates, which would cost all of us many billions of dollars, but would send such shock waves around the world that we would potentially cause […]

I spent the day Sunday watching and judging high school debate, a great opportunity to observe what works and what does not work in argument. In one of the debates, on the proposition that convicted drunk drivers should be required to display special license plates, the opposing team argued that breathalyzer-interlock devices are more effective than drunk driver license plates. In response the proposition team made the mistake of trying to shoot down the interlock idea: interlock devices are too expensive, they do not alert the police and other drivers to possibly dangerous drivers, etc. They fell into the trap of thinking that because they had to prove that their idea is good, it follows that they had to prove […]

I used to think, back when I was a naive young law clerk, and even into my first few years of practice, that the legal system should provide a clear answer to most legal questions. If you were to read and research carefully any random motion, say for summary judgment, or listen to all the evidence and argument presented in any civil case, the vast majority of the time, the system should provide the same answer to each problem.  Especially for pure questions of law. If we’re not all getting the same answer, we probably just haven’t analyzed the problem carefully enough. I still think that predictability is an important ideal, but I no longer think the legal system will […]