Conflict Resolution

Advanced Problem-Solving Strategies

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Say you’re planning an excursion to the beach. Would it make sense to suggest that the best way to get there would be to head in the opposite direction, toward the desert? When your passengers question that route, the only excuse you might have to offer is that after they spend a few hours driving around in the dry heat, they will appreciate eventually getting to the beach even more. But they probably would have arrived at the beach in a better mood if you had taken them on a more direct route. One commonplace saying I’ve heard over the years from litigators is that the best way to get a favorable settlement in a lawsuit is to prepare the […]

Yesterday I mediated my last case referred by the Los Angeles Superior Court mediation program (aside from a couple of cases I am still trying to wind up as private mediations). This last case turned out to serve as a good illustration of some of the problems with the LA program. It was a case involving a high dollar amount, making me wonder why the parties chose a randomly-assigned mediator for three free hours. One of the attorneys was determined to insult the mediator, reminding me that I was chosen at random and admonishing me not to speak to her client. Another attorney refused to engage in any substantive discussions about the case until after the other side presented what […]

Nobody should be surprised that the “fiscal cliff” negotiations are going down to the wire, and perhaps beyond it. Republicans and Democrats have been fighting tooth and nail over these budget issues for years now, and nobody is about to concede gracefully to the other side. Only when both sides are absolutely sure that the deal on the table is the only deal available, and that the deal is better than the alternative–an unpleasant package of tax hikes and budget cuts that will take effect automatically in January–is there a possibility that both sides will accept the deal. In this situation, the deadline itself might be the only thing that will force the parties to make a deal, which means […]

Last night, the Republican House leadership withdrew the tax part of their so-called “Plan B,” which would have raised the top bracket percentage only for people making over $1 million annually. Plan B was withdrawn because they didn’t have the votes to pass it. In negotiation parlance, Plan B was akin to the Fisher/Ury concept of BATNA (the best alternative to a negotiated agreement). In mediation, however, I find it more useful to focus the parties on the MLATNA (most likely alternative to a negotiated agreement), because parties who fail to make a deal can’t count on getting their best alternative outcome. (In the budget negotiations we are now watching, the MLATNA would refer to the most likely scenarios that […]

(Wikimedia Commons) Judge Jed Rakoff of the Southern District of New York today rejected a proposed consent judgment and  $285 million settlement of an SEC enforcement action against Citigroup. The SEC alleged that Citigroup had defrauded investors in a fund comprised of toxic assets, but was willing to accept a monetary settlement and injunction without requiring Citigroup to admit the truth of these allegations. In this case, the court disapproved this longstanding practice, in its words, “hallowed by history, but not by reason.” The court’s opinion determined that the proposed Consent Judgment “is neither fair, nor reasonable, nor adequate, nor in the public interest. Most fundamentally, this is because it does not provide the Court with a sufficient evidentiary basis […]