Business Conflict Blog

Retired Magistrate Judge Wayne Brazil was an innovative, dedicated and creative contributor to the growth of court-connected ADR in the 1990s up until his recent retirement.  On June 3, he honored the New Jersey State Bar with a keynote speech at the annual New Jersey “ADR Day,” and his remarks were instructive and inspiring.

Denying that he had “anything new to say to experienced mediators,” Brazil instead posed the questions: What can mediators contribute to shaping the future?  How does court-mandated mediation fit in our system of justice?  Is it worth the expenditure of time, money and patience for able members of the bar to serve in court-mandated mediations? Read more »

Tags: Courts, Public Policy

It is curious that, as formal training in private negotiation increases, the quality of public negotiation has fallen into such disrepair. 

Business people negotiating a private deal are trained to listen attentively, in order to discover their counterparty’s interests, and to devise beneficial options that accomodate them.  Yet listening is something one seldom observes in public legislative debate.  Adjusting one’s view on the basis of what one hears, practically never.

Why is that?  And might the ADR community have something to contribute to encourage creative negotiation of matters of public interest?  The Council of the ABA Section of Dispute Resolution seems to have something to say about both those questions.

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Tags: Culture, Lawyers, Negotiation

One of the most in-demand items at the ABA Annual Meeting was a seat at the Moscone Center for the panel titled “Shaping the Law: A Solicitor’s General Roundtable.”  The misplaced apostrophe notwithstanding, it was enlightening and a lot of fun.

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Tags: Public Policy

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