Conflict Resolution

Advanced Problem-Solving Strategies

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Assuming the LA Superior Court proceeds with its plan to close its ADR program this spring, the question to ask is not: how will people find mediators? Because mediators are not difficult to find. A web search will turn up hundreds of private mediators in the Southern California region. ADR provider organizations will be only too happy to refer litigants to their panels.  Organizations like SCMA have lists of mediators accessible on their websites. And a number of directories are available in which mediators promote their services. The real question is whether parties and attorneys are going to continue to seek out the services of mediators after the court stops performing the functions of assigning cases to mediators and following […]

Oftentimes, all we need to do to resolve a dispute is arrive at an agreed-upon value for the subject of the dispute–whether that is a lawsuit, or a company, or a piece of property. It therefore behooves the parties to come to mediation armed with as much objective information as they can get that would support the value they are seeking. In the case of property, that might be an appraisal. In the case of a lawsuit, that might be legal authority or jury verdict information. I mediated a case recently where the parties were on the verge of signing a deal, based on a shared understanding of an item’s potential value. In reviewing their file before making this commitment, […]

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 […]

I’ve been doing something of a CLE marathon the last few days, and so got a chance to listen to a lot of mediators and lawyers talking about the current state of the dispute resolution world (that includes both litigation as well as mediation and arbitration). One thread that came out of a talk I heard by Federal District Court Judge Gutierrez had to do with lawyers’ compliance (or lack of compliance) with the rules governing the preparation of cases for trial. One would think that lawyers would expect a better result, whether through trial or settlement, if they properly prepared their cases. But many don’t bother. Are they just lazy, or are they inexperienced, or is it that they […]

“Preparation, preparation, preparation,” is the trial lawyer’s mantra. It is possible to over-try a case, but it is not possible to be over-prepared for trial. On the other hand, preparation is expensive. And preparation may seem wasteful, if the case does not go to trial, as most cases don’t. So most trial lawyers would rather avoid burdening their clients with unnecessary costs, i.e., costs that are not going to help try the case if it must be tried, or that would help settle the case, which might mean costs that show the other side that you will be well-prepared for trial. Parties go to mediation precisely to avoid the enormous costs of preparing for trial. As long as they have […]