Early coal mines didn’t have good ventilation, and miners were at risk from dangerous gases in the mines. So miners would bring canaries into the mines because they were sensitive to the gases and provided a warning of danger. The canaries would sing until they died from the gases. When they stopped singing, miners knew … Continue reading Canaries in the Litigation Coal Mine
Law school teaches students that law is a seamless web of rules emanating from authorities like statutes and cases which they must memorize and finely parse in hypothetical cases. In real life, practitioners generally think of law in terms of Oliver Wendell Holmes’s famous definition: “prophecies of what the courts will do in fact.” Of … Continue reading The Role of Law in Legal Disputes
People often say that dispute resolution processes aren’t “one size fits all.” When practitioners are asked to opine about hypothetical problems, they often say “it depends” and they make “case by case” decisions. They are telling the truth. Lawyers make complex decisions as negotiators, litigation advocates, and mediators based on a lot of factors, so … Continue reading Teaching Students to Think Like Practitioners
When President Trump was in office, I wrote a series of posts about his negotiation skills (or lack thereof) based on contemporary news accounts. Despite having Republican majorities in both houses of Congress for his first two years in office, he generally was unable to negotiate for enactment of his policy objectives, most notably to … Continue reading A Tale of Two Negotiators
Like it or not, facilitative and evaluative mediation are part of the social reality of our field. Despite the fact that these models are misleading and provide counterproductive concepts to guide mediators’ behaviors and set parties’ expectations, they are inescapable. They are standard elements in texts, courses, trainings, and general discourse in our field. They … Continue reading Reconciling Allegedly Alternative Mediation Models by Using DIY Models
This was the question I had to answer when planning a lecture. I was a speaker in a course offered by the Universidad Monteavila in Caracas, Venezuela. My wonderful colleague, Rafael Gely, organized this collaboration with Missouri’s DR Center to provide a series of speakers, including me. My Venezuelan colleague told me that I could … Continue reading If You Had Only One Hour to Describe ADR, What Would You Say?
From TFOI Rachel Viscomi and Lisa Dicker: After the murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and too many other Black Americans, protests across the country built what became one of the largest movements in American history. Yet many activists in the U.S. felt that what resulted were only piecemeal reforms and lip service. … Continue reading New Report on “Power, Protest, and Political Change” from the Harvard Dispute Systems Design Clinic
I just wrote this post on the Kluwer Mediation Blog on this subject. It summarizes empirical research showing the huge chasm in perspectives between many lawyers and their clients. Lawyers often focus only on monetary issues in legal disputes, which drives many of their clients crazy because they are also very concerned about a wide … Continue reading Lawyers Are From Mars, Clients Are From Venus – and Mediators Can Help Communicate in Space
From FFOI Rachel Goedken: On Friday, Feb. 26, from noon to 5:00pm CT, the Creighton University School of Law will be hosting its annual Law Review Symposium virtually. This year’s topic is Alternative Dispute Resolution in the Business Setting and will celebrate the 15-year anniversary of the Werner Institute. This outstanding program combines the latest … Continue reading Creighton Symposium on ADR in Business – February 26
Imagine that you just stared into the neuralyzer in Men in Black. It wiped out all your memory of the traditional bundled of models of mediation and negotiation. You know – facilitative and evaluative mediation, interest-based and positional negotiation, etc. etc. The neuralyzer also vaporized all references to them in texts and teaching materials. You’re … Continue reading Merging Mediation Models – And Other Lessons
Everyone knows that lawyers should carefully assess their cases at the earliest appropriate time. In cases that are or might be litigated, lawyers often focus primarily or exclusively on estimating the expected court outcome (aka the BATNA value). The LIRA book provides guidance for more thorough and systematic case assessments, including values for tangible costs … Continue reading LIRA Videos Out the Wazoo!!
The LIRA book – Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions – focuses on civil litigation. It describes three elements that practitioners and parties should consider when assessing litigation interests and risks: (1) the expected court outcome, (2) future tangible costs of continuing to litigate, and (3) future intangible costs … Continue reading LIRA in Criminal Cases