Conflict Resolution

Advanced Problem-Solving Strategies

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One of the more interesting courses I took in law school was International Law, which is not a course that everyone takes, because it does not appear to offer much practical value for most lawyers’ careers.  I didn’t see much practical value in it either when I signed up, but found that it got me thinking about the law in a much different way from other law school courses.   What you learn when you study international law is that the system of international law is for the most part not structured as a body of statutes enacted by legislatures, or precedents handed down by judges.  International law is mostly not enforced by police, or by fines, or by prison.  Because […]

One of the things that mediators sometimes do is to try to get parties to think about lawsuits as a series of probabilistic outcomes, i.e., what are the chances the case will get dismissed before trial, that the plaintiff will prevail before a jury, that there will be an appeal, that the defendant will file bankruptcy, etc.  Parties often need to make a conceptual leap before they can even begin thinking about their dispute in those terms, however.  A lawsuit does not start out as a game of chance.  It starts out as a story in which one or both  parties injured or betrayed the other, and both parties seek vindication and compensation for their respective grievances.  Clients approach a […]

I’ve been debating Afghanistan policy on my political blog and elsewhere, and here will reprint the post I did on that subject: Politically speaking, it is not a viable position simply to suggest that we pull US and NATO forces out of Afghanistan, because that implies that we don’t care whether the Taliban returns to power and makes Afghanistan into a haven for Al Qaeda once again. Anyone who wants to talk about Afghanistan in a way that might be listened to has the obligation to show that a different strategy has at least as good a chance of fulfilling the objective of keeping the Taliban out of power as our current strategy. One organization that seems to be addressing […]

A hot topic in the litigation field during these bad economic times is how to reduce litigation costs. Numerous articles and discussions have appeared about alternative billing or staffing arrangements that can save clients money, presumably by reducing the amount of time spent on activities that do not advance cases toward trial. I agree that billing by the hour sometimes creates perverse incentives for attorneys, just as it does in any profession that bills by the hour or by the procedure. I also agree that over-staffing and engaging in unnecessary work drives up legal bills. But I also think that discussions about litigating more efficiently sometimes miss the larger point. The best way to reduce litigation costs is not to […]

Mediators will sometimes tell the parties that the measure of whether a proposed settlement is fair is that it should make both sides equally unhappy. In other words, a party accepting less (or paying more) than they think they should is supposed to be consoled by the fact that the other side feels exactly the same way. I think this is a very negative way of looking at settlement. I tell the parties in a mediation exactly the opposite. I tell them that if they think they will be better off rejecting the settlement and taking their case to trial, by all means they should do that. No one should accept a settlement that makes them worse off than the […]