Conflict Resolution

Advanced Problem-Solving Strategies

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Way back when I served as a law clerk to a federal district court judge, I remember watching a trademark infringement bench trial about to begin. The parties had all their exhibits lined up; they had prepared their experts and their surveys; their attorneys announced that they were ready to proceed. Months before, I had worked on the opinion denying one side’s motion for summary judgment, so I knew that the parties had already invested in a lot of pre-trial proceedings. Before hearing opening statements, my judge advised the parties that he had formed no conclusions yet about which side was in the right. He told the parties and their attorneys that he would try to reach the correct result, […]

It seems appropriate to follow up on my earlier post about the factors that create impasse (as applied to California budget negotiations), with a post on what finally broke the impasse. In other words, why did the Democrats cave in to the Republican demand that taxes not be increased? Some political analysts attribute that result to the Democrats simply being more “wimpy” than the Republicans. Because Democrats seem perpetually less organized and more prone to infighting, because they seem to have more difficulty getting a coherent message across, or because they just lack backbone, the thinking goes, they are always getting rolled. I’m sure there is something to this kind of personality analysis of the parties, but I’m not sure […]

A lot of mediators will start off a mediation with the disclaimer that, unlike a judge, they have no power to decide the case. They are merely there to help facilitate a resolution. This strikes me as an unhelpful way to begin the proceedings. It seems better to remind the parties of all of the benefits of mediation that they cannot obtain in court. For example, mediation can provide an opportunity to make arguments directly to the opposing parties, as opposed to making arguments to a neutral party like a judge. Mediation also empowers the parties to craft their own solution to the dispute, rather than placing them at the mercy of a judge. Mediation makes parties the masters of […]