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Law Rules

How we resolve our disputes

Entries in conflict (9)

Monday
Oct232017

Reclaim Civility in Conflict

For the past seven years, the American Bar Association has been celebrating the third week in October as Mediation Week. This year’s theme is “Mediation, Civility and the Power of Understanding.” In conjunction with that theme and this year’s celebration, the Dispute Resolution Section of the State Bar of Wisconsin published a blog listing seven ways to recognize the value of mediation for addressing conflict in our lives. I am honored to serve on the Board of that Section. As editor of our blog, I thank my fellow board members Amy Koltz and Lisa Derr for their fine work in drafting and submitting this blog. 

Please click on the link and read the blog. Then, consider incorporating mediation and other alternative dispute resolution skills into your daily problem-solving toolkit, not just this week or month, but throughout the year. 

Thursday
Sep112014

Economics, Coase Theorem & Mediation

An excellent article appears in the current edition of the Verdict on Justia.com. It discusses the economic principle that has come to be known as the Coase Theorem in the context of recent reports of disputes about reclining seats on airplanes. Specifically, conflicts arise when people disagree about who has the right to precious space (i.e., in economic terms, a “scarce resource”). More importantly, the absence of a dispute resolution system to handle these conflicts expeditiously has lead to disruptive and sometimes physical altercations. The Coase Theorem says that assigning property rights will lead to an efficient outcome through bargaining and negotiation. However, it also recognizes that transaction costs are ubiquitous and important to consider. These costs include having enforcement and dispute resolution mechanisms in place. The airlines will have to remember this if and when they ultimately establish rules regarding the “right” to recline or to prevent reclining.

The author concludes that “Problems are solved not by assuming them away, but by confronting them and thinking about them clearly.” Indeed, the airlines will have to confront this problem. In order to preserve comfort and peace on airplanes, it is important that they think this through completely and explain their decision coherently. This is what makes negotiation and dispute resolution, and life itself, complex. It is also why I have advocated getting a neutral third-party involved when making such decisions. Things are not always as simple as we wish them to be.

Wednesday
Aug142013

Fly on the wall

How many times have you finished a negotiation and wondered how much more you could have gotten the other participant to agree to? Have you ever wished you could have been a fly on the wall in the other side’s conference room?

My website claims that a mediator can help people negotiate better than they can negotiate on their own. I’ll go one step further. A mediator can help people negotiate better than they can with other advisers, like attorneys, business coaches, accountants and public adjusters. This is not to say that those professionals are not helpful or worth consulting. They are often essential. You can tell your attorney both the strengths and weaknesses of your position in confidence because you have a legal privilege not to have that information disclosed to anyone else without your consent. That is not true of any other business adviser or coach. Only doctors, clergy and spouses have a similar legal privilege. But even your attorney gets the story of your dispute or conflict only from you. Your attorney or business adviser or consultant can serve only one master. Your opposition will not tell your advisers their real bottom lines.

In contrast to this adversarial model of negotiation, mediation has a great advantage. A mediator can talk confidentially to both (or all) sides in a dispute or conflict, and no one—not even a court—can compel the mediator to disclose what is said in confidence. Thus, the mediator can be the proverbial fly on the wall who listens to each participant’s strengths and weaknesses, hopes and fears. By hearing and seeing the bottom lines of all participants, the mediator can determine whether there is an overlap, where everyone’s interests coincide, or whether there is a gap and, if so, how large and important it is. In this way, the mediator can encourage the participants to move toward those positions or solutions where agreement is possible. The mediator can also suggest when a settlement proposal or offer may be worth exploring, and when it may not be worthwhile. As a result, the mediator can prevent the parties from leaving money on the table or from giving away the store.

I am not so naive as to believe that everyone is entirely truthful, even when speaking with a mediator in confidence. I have been lied to. I have played poker, where bluffing is part of the game. But getting people to talk in confidence often discloses real interests and hidden agendas, even when they are prepared or guarded by their own attorneys, consultants and advisers. Sometimes, as a mediator, I am most useful when people ignore me, like the fly on the wall. By simply listening to and observing both participants, together or separately (in confidence), I can spot opportunities for settlement and prevent people from giving up too soon. So let a mediator be your fly on the wall. The mediator cannot tell you all that he or she sees and hears. But the mediator can make your negotiations more productive, with less second-guessing and buyer’s remorse when it is over.

 

Friday
Apr062012

Opening day

I admit it. I’m a homer. I like my hometown professional baseball team, the Milwaukee Brewers. Today is the opening game of the 2012 season. After a first place finish in our division last year, hopes are high for another exciting and successful season. But even if they don’t win it all (and the Brewers never have), it is still good clean entertainment, usually outdoors.

What does this have to do with dispute resolution? I have written about conflict in sports before, (at least twice). It can be a good model for how we should handle conflict in the workplace and society in general. During the off season, we saw the controversy about Ryan Braun’s positive blood test for steroids. It was finally resolved through arbitration. Agree with the decision or not, it has the benefits of finality and closure. And it showed the importance of having some kind of relatively quick decision making procedure to resolve the dispute.

Conflict can be constructive. Even if we don’t get everything we want or hope for, engaging in a civilized discussion or game with your opponent ultimately puts the dispute behind you and lets you get on with your life. If we don’t win today’s game, there are 161 more to go. And then there is next season. In the meantime, enjoy the game and the opportunity for growth that civilized conflict provides. Baseball is one of the most civilized sports. No slap shots, slam dunks, sacks or kicks. Just some base hits and the opportunity to make it “home.” So enjoy the game and play ball!

Saturday
Jan212012

Is it just business or is it personal?

After a trial is over, it is customary for opposing counsel to shake hands before leaving the courthouse. While many trial lawyers are highly combative and competitive, a trial is rarely a personal contest between lawyers. While lawyers like to win, they usually go on to fight another day. But some clients have difficulty understanding how lawyers can do battle in the courtroom for days (or sometimes weeks) and then shake hands when it is all over. Of course, a trial is not always the end of the dispute. There can be appeals, reversals and retrials. A trial might be merely one tool to gain leverage in getting the opposing party to do you what you want them to do. Ultimately, a final judicial decision will put an end to the dispute, but it does not necessarily put an end to the enmity between the parties.

Occasionally, litigation can be a “bet the farm” proposition. An attorney representing such a client should find that out before taking on the case. A mediator should also determine the parties’ financial situations as early as possible. Some litigants have nothing to lose in litigation (because they have nothing to start with). Others have everything to lose. Some are looking for vindication. In any case, everyone should keep in mind that the courts have the last word not because they are always right. Rather, they are right because the have the last word. (If anyone can find or remember who first said that, please let me know.)

In a civil society, we all must agree that if we cannot resolve our disputes by ourselves, the courts will do it for us. The alternative is the law of the jungle; survival of the fittest; might, not necessarily right. So, even if the dispute is personal, litigants would do well to learn what attorneys are trained to do:  shake hands and learn to live and fight another day.