Business Conflict Blog

A recent article has been making the rounds of ADR professionals. The current issue of the American Psychological Association’s publication Psychology, Public Policy and Law (Vol. 16, No. 2, at 133-57) features a report of a study conducted by a group of scholars from Australia, Sweden and the United States. The group canvassed 481 American attorneys – in civil and criminal cases, both plaintiffs/prosecutors and defense – and found that lawyers are prone to overconfidence. That is, they predict outcomes of their cases that are not only erroneous, but generally too optimistic.

I’m wondering why this is news. I think that we mediators have known this all along; in fact, that’s why we’re hired. Read more »

Tags: ADR, Lawyers, Negotiation, Teaching, Training

Some time ago I brought to readers’ attention a case holding that an attorney who was alleged to have committed malpractice during a mediation could not be sued because confidentiality barred the introduction of evidence of the attorney’s behavior during the mediation. 

Now we have the arbitration side of the coin:  A party that engaged an arbitrator to render a final and binding award, and that participated in a series of evidentiary hearings, has no recourse when, at the end of the last hearing, the arbitrator declines to issue an award on the ground that he has become “too compassionate towards both sides.”  The full text of the January, 2010 decision of the California Court of Appeals may be found here. Read more »

Tags: ADR Institutions, Arbitration

In 1999, CPR Institute published Kathleen Scanlon’s volume Mediator’s Deskbook.  It was (and still is) a terrific book, subsequently translated into Japanese and Chinese, but alas out of print after 11 years.  James Henry, CPR’s founder and president, thought of it as “the well-thumbed paperback that every mediator leafs through on the way to the mediation.”

In the decade since Mediator’s Handbook was published, the mediation library has grown to a scale Jim Henry could not have imagined.  These include not only excellent books, like Richard Shell’s Bargaining for Advantage and Ben Picker’s Mediation Practice Guide, but casebooks like Carrie Menkel-Meadow’s Mediation, practical innovations like Steve Brams’ The Win-Win Solution, compilations like Russ Bleemer’s Mediation Approaches and Insights, periodicals like the ABA Dispute Resolution Section’s Dispute Resolution Magazine, web sites like Mediate.com, and blogs like… well, modesty forbids!

Read more »

Tags: Mediation, Teaching, Training