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

Frederic Luskin, Director of the Stanford Forgiveness Projects, reminded a packed house at the ABA Dispute Resolution meeting in San Francisco that a 2-yr old who is told “no” screams and yells when she doesn’t get what she wants, but then eventually stops and moves on to the next thing.  By contrast, a 40-year old who doesn’t get what he wants can persist in expressing his anger and indignation for many, many years; in some cases, he will never stop.  In this lies the attraction, for some, of the American civil judicial system.

Dispute resolution professionals often encounter people whose wound has morphed into an attribute of their very life.  Who they are is fundamentally tied with the claim.  They are no longer wife or butcher or brother or son; they are The One Who Was Wrongly Dealt With.  Dr. Luskin asked us whether we might consider not just helping that person to ”resolve” the dispute, but facilitating the removal of the conflict as a central mechanism of the relationship.  Might we help to guide wounded people past their wound? Read more »

Tags: ADR, Culture

In his keynote address to the Section of Dispute Resolution of the American Bar Association, MIT Professor Lawrence Susskind urged that it was time for ADR professionals to get involved in the failure of meaningful discourse in American public life, and to assist people to talk to each other about deeply held beliefs.  He focused on disputes that arise “when people describe who they are rather than what they want” and outlined an approach to dispute resolution that is distinct from the familiar Fisher/Ury interest-based model.

The underlying assumptions of interest-based facilitation — that the parties have interests, know their BATNAs, will seek maximum return without unnecessary delay, and will accept an agreement whose terms are better than no agreement – don’t work when people’s values, or their very identities, at at stake.  Abortion or same-sex marriage are not interests, or even principles; they define who some people are.  When these defining values are encroached upon or attacked, what facilitation model applies?  Read more »

Tags: Culture, Mediation, Negotiation

I hope that those attending the ABA Dispute Resolution Section meeting in San Francisco will consider attending the panel at 4:30 Thursday April 8 titled “Gazing Into the Crystal Ball: What Will ADR Be Like in 25 Years?”  The speakers are deeply informed and imaginative.  They include Michelle Leetham of Bechtel, Janet Kloenhamer of Fireman’s Fund, Jay Folberg of JAMS/USF, and Colin Rule of Ebay/PayPal.

During prep sessions it has been difficult to restrain the good humor, lacerating wit, and sheer brilliance of these folks.  They have spent their lives devising ways to anticipate and then manage disputes, and have a lot to say about what might lie ahead. 

Twenty-five years ago people were plugging phone lines into “home micro-computers” and bemoaning Cravath’s setting $60,000 as a starting salary.  I hope that, 25 years hence, ADR processes that commence with the filing of a complaint or demand will be considered quaint.  Anyway, do join them — you won’t regret it.

Tags: ADR, Culture, ODR