Monday, October 12, 2015


Tunisia, where the Arab Spring started, is also the first country to emerge from its revolution with a genuine commitment to democracy and the rule of law. This outcome may be attributable in large part to the work of the National Dialogue Quartet, a group composed of four organizations: the General Labor Union; the Tunisian Confederation of Industry, Trade and Handicrafts; the Tunisian Human Rights League; and the Tunisian Order of Lawyers. When Tunisia appeared in danger of falling into civil war, these organizations banded together and persuaded the Islamist and other parties to agree to a framework for negotiations that would lead to a more legitimate and pluralistic government.

The quartet's work illustrates two techniques favored by mediators: (1) acceptance by all of the feuding factions of a set of ground rules, and (2) encouragement of continued dialogue among all of the affected parties to the conflict.

Last week, the Quartet was awarded the Nobel Peace Prize.

Upon learning of the award, the president of the Tunisian Order of Lawyers, Mohamed Fadhel Mahfoudh, stated: "I think this is a message to the world, to all the countries, to all the people that are aiming for democracy and peace, that everything can be solved by dialogue. I also think that it this a message for political parties engaged in political conflicts that everything can be solved with dialogue. Everything can be solved in a peaceful climate. To engage with weapons does not lead anywhere."

New York Times

Friday, October 9, 2015

SCMA Fall Conference

The Southern California Mediation Association has announced the schedule for its annual fall conference in scenic Malibu, California on November 7, 2015. This year's theme is "Conflict Revolution: Mediators as Agents of Social Change."

The website describes the focus of the conference this way:
Today, in addition to the role they play helping to resolve legal disputes, mediators regularly serve as educators, executive coaches, facilitators, leadership trainers, ombudsmen, therapists, business consultants, and architects of dispute resolution programs at all levels. In today’s inter-connected world, there are numerous opportunities for mediators to support societal change through peaceful dialogue. 
This year's conference will include workshops on LGBT rights, race relations, urban projects, health care, and corporate governance, in addition to more nuts and bolts offerings on mediating family law, real estate, employment and other kinds of legal disputes. It promises to be a very exciting event.

Register here.

Wednesday, September 30, 2015

Days of Dialogue

I have had the opportunity recently to act as a facilitatator at a couple of the Days of Dialogue events taking place in Los Angeles this year. Taking a contentious topic--the future of policing--that has been debated around the nation in a confrontational fashion, this program demonstrates another way the issue can be addressed. The program brings together police officers, community leaders, students, and other interested and affected residents of the city to sit around small tables exchanging ideas and experiences related to how policing is and should be conducted.

The organizers of these dialogues have promoted them as a starting point for action and change. And it's certainly legitimate to view the process of listening and trying to understand different perspectives as a first step in helping to craft better policing practices. But the dialogue could also be viewed as an end in itself. The mere fact that people can engage in reflective communication about a divisive issue is what brings about change. By participating in these kinds of dialogues, we have an opportunity to gain some appreciation of the challenges facing police officers. And police officers have an opportunity to gain a better understanding of how they can be viewed sometimes as protectors and sometimes as threats to the community. Biases can be exposed; historical perspectives can be shared. Just by sitting around tables and talking with random people of different views, we may change more attitudes than can happen when opposing factions only shout at and confront each other.

(But see my post on a black lives matter protest I witnessed this summer, where I argued that carefully-staged confrontations can also be effective in changing attitudes. Protest marches may be needed sometimes to call attention to an issue, but constructive dialogue is also needed to help resolve conflict.)

Sunday, September 27, 2015

Blogger vs. WordPress

I recently succumbed to the need to upgrade my main law office website,, to make it look more professional and up-to-date. My law office site was one I created myself more than 10 years ago using the Blogger platform. About 6 years ago, I created this mediation site myself using Blogger. I still have a lot of affection for Blogger, which has a number of advantages going for it. Blogger is free. It is easy to set up and use. Editing posts, and even changing the layout and the template, is simple and intuitive. And the platform is more versatile than people give it credit for, allowing for some fairly sophisticated possibilities.

On the other hand, Google doesn't seem to have taken much interest in recent years in improving the Blogger platform, and, unless Google has some plans I don't know about, Blogger appears in danger of becoming a relic of the past. Most designers, and most owners of commercial websites, have long ago migrated to WordPress. It seemed like the obvious choice for my revamped website.

WordPress's capabilities seem limited only by the designer's imagination. Though it started as a blogging platform, WordPress now allows an enormous variety of content and layouts, while seamlessly integrating the blogging function anywhere the website owner wants to install it. On the other hand, I find that creating new blog posts in WordPress is more cumbersome than Blogger, and making other changes to the website is more complicated. It is much less "what you see is what you get." It is also less "do it yourself." I needed a professional website designer to create the WordPress site I wanted, and I will probably need help going forward in maintaining the site, unlike my Blogger sites, which I've been able to keep updated without any help.

I had to deal with a related dilemma in creating my new site. Should I integrate this mediation blog with my law office website? Or should I maintain this mediation blog as a separate, stand-alone site?

A blog and a commercial website are really two different things. (That was one reason my prior law firm site wasn't entirely successful, because the site looked like it couldn't make up its mind whether it was a blog or a website, and I was devoting most of my blogging attention to blogging on this mediation site.) A blog is usually thought of as an educational and informational platform presenting the author's views on a relatively narrow topic. It can also be used as a diary or creative outlet for the author. A blog therefore should not be too blatantly promotional. A blog's content should be more article-like than advertisement-like. A commercial website, on the other hand, should function as a business's virtual address. It serves as a calling card and promotional tool for the business. It might need a lot of content to inform the public of all of the business's activities, but it doesn't necessarily need a creative or educational diary to perform its functions.

In the law firm world, I notice that while firms are encouraged to create blogs to show off their expertise and enhance their online visibility, not too many firms are very good at keeping up with producing good blogging content. That may be because blogging is a different task from the main website's task of describing the firm's capabilities, and because not all firms can find somebody in the office who likes doing it.

Here is my solution to these personal dilemmas and conflicts. At least for the time being, I plan to maintain this "Conflict Resolution" site ( as my personal platform for sharing ideas on the subject of conflict resolution in general and mediation in particular. For now, this site is going to remain on Blogger because Blogger is so easy to use, and still more of a "pure" blogging platform. Meanwhile my new WordPress site can stay up-to-date and flashy. While that site will include occasional blog posts, some cross-posted from here, that will not be the focus of the law office site.

Sometimes to resolve a conflict, like whether you should have pie or ice cream for dessert, you don't have to choose one or the other. You can have both. The only thing you have to decide is whether you want your ice cream on top or on the side.


Thursday, September 17, 2015


My rabbi's Rosh Hashanah sermon this year concerned the important topic of healing the widening rifts in the Jewish community, which have broken out especially over the nuclear weapons deal with Iran. The problem he was talking about is not so much that there is disagreement about the advisability of this deal. Considering how troublesome and untrustworthy an adversary Iran has been, one would expect strong disagreements among supporters of Israel about how we should deal with that adversary.

Such disagreements wouldn't be a particularly new thing among members of the Jewish community. As the rabbi pointed out, ferocious conflicts among factions of the Jewish community have existed from the time Joseph fought with his brothers, and on and on through the ages. The resolution and the continuation of these conflicts have defined and often strengthened the Jewish people. Quoting from the scholar Yehudah Bauer, "quarrels and disputes are the engine that drives [our] culture forward, backward or sideways. That is its elixir of life." Or as the Rabbi said: "Add to the mix the fact that we Jews are by nature and nurture an edgy, argumentative, opinionated, critical, and self-critical lot, and the result is conflict."

The danger does not lie in these endless disagreements; it lies with elements on each side of the debate who question the motives of those with whom they disagree. It lies with those who resort to violence instead of debate. And it lies with those who seek to drive conflicting voices out of the community.

Senator Schumer and Congressman
 Nadler happen to have taken opposite
 positions on the Iran deal.
We don't have to agree all the time to preserve the unity of the community. We do have to treat those with whom we disagree as members of the same team, and recognize that all elements of this large, unruly Jewish community share common interests. Otherwise, we are in danger of losing the things that have defined and preserved the community in the first place.

Monday, September 14, 2015

Openings, part 3

In my last post on the topic of how we initiate conflict resolution, I talked about how lawyers frame disputes in a way that may leave out some of the most important concerns of the parties. But the blame for turning a multi-faceted conflict into a contest over legal issues does not lie solely with narrow-minded or selfish lawyers. The parties also bear some responsibility for viewing their dispute in that way.

Most new or potential clients walk into a lawyer's office looking for vindication. They want to talk about the merits right away. They want to know which side is right, and which side is at fault. Since most clients are pre-disposed to believe they are in the right, they are also hoping the legal system will provide that answer for them. Lawyers are pre-disposed to respond in a supportive way, but we usually qualify our answers to some extent, by making statements such as "based on what you are saying, it certainly looks as though you have some strong claims (or defenses)." The lawyer knows there is probably another side to the story, but what clients take away from such responses is the message that they will win.

On the one hand, lawyers have to be empathetic and encouraging, which is necessary not only as a first step toward conflict resolution, but also to show the client that you will be an effective advocate for the client's interests. On the other hand, lawyers need to give clients sound and dispassionate advice about the weaknesses of their position, as well as the costs of pursuing it.

We need to convey to clients that in most cases, no one is ever going to determine which side is right and which side is in the wrong. Most cases are resolved without getting definitive answers to those questions. We also need to make clear that the outcome of a lawsuit usually cannot be predicted with a high degree of certainty.

At the outset of a case, therefore, lawyers might need to steer the conversation away from a discussion about which side is right, and toward some other important considerations such as how much is at stake, what resources each side has to contest the matter, how strongly each side feels about their position, and what underlying problems might be causing the conflict. The answers to those question will often determine how protracted and difficult resolution of the dispute is going to be.

We ought to start off a representation by focusing more on how to bring the dispute to a satisfactory resolution, which in most cases is going to be by negotiated agreement, instead of trying to answer the hypothetical and often unanswerable question of how the case would be decided by a judge or jury.

Sunday, August 30, 2015

Straight Outta Compton

Who would have thought that the new movie, Straight Outta Compton, in addition to its great story and great music, would also contain some great lessons about negotiation? The main lesson being about the dangers of creating a partnership deal that is not fair to all of the participants. According to the movie's version of events, the leader of the group NWA, Eazy-E, and the manager Jerry Heller, presented the other members with a deal giving them a much smaller share of the profits than Eazy-E was taking. Followers of the school of aggressive negotiation can justify this hard bargain because it was originally Eazy-E's company and he put up the money to get the band's first record made, and also because the ethics of that school of negotiation support taking whatever you can get, and letting those on the other side of the table look out for themselves.

The results of driving such a hard bargain in this case were disastrous. The group's talented lyricist, Ice Cube, refused to sign and left the group. Eventually, the brilliant composer Dr. Dre also left the group. Both these talented musicians went on to have spectacular solo careers, while Eazy-E is shown losing almost everything. Experts on negotiation stress the importance of leaving something on the table, and making the deal fair to other parties, particularly when one has to work with those partners in the future. And particularly when those partners create so much of the value for the group. (For example in Michael Wheeler's book The Art of Negotiation, discussed in a previous post, the author provides many examples of aggressive negotiators blowing deals by demanding too much, or gaining deals that cost them in the long run.) Because Jerry Heller and Eazy-E failed to observe those rules, they ended up much worse off than if they had treated their partners fairly.

But just in case anyone thinks that this film about a bunch of tough guys only illustrates the value of "nice guy" negotiating, the movie also contains some examples showing that taking a "tough guy" approach can also be effective. At one point, Ice Cube is shown smashing up his record producer's office with a baseball bat to convey his displeasure at the size of his royalty payments. It's not a tactic I can recommend, but it sure seemed to make the guy a lot more pliable the next time they met. Dre's partner Suge Knight is also shown employing even more violent methods to make a deal, methods that lead to some short term success but long term failure. So there is also a place in negotiation for standing up and demanding what you are entitled to. To a large extent, that is what NWA stood for.

Highly recommended.

Thursday, August 27, 2015

Openings, part 2

When we meet someone for the first time, we immediately start forming impressions of them. It takes a lot to change that perception, even if they turn out to be quite different from the way we initially perceived them. Similarly with conflict. The way in which a controversy is framed does much to affect the way parties subsequently see the dispute.

When a prospective client brings their problem to a lawyer, the lawyer is trained to sift through the client's story and pick out all of the potential legal claims. Much of the client's story is irrelevant to the lawyer, even though it may be important to the client. The lawyer then frames the story as an accusation that the other party has committed certain wrongs. What the case is "about" is then determining whether the opponent's conduct met the standards for assessing liability. 

There are a number of problems with this approach. First, the way in which the legal system defines the problem may not much resemble the problem that was originally bothering the parties. Instead, the legal system has created a new problem for the parties, by assigning them the task of obtaining a legal determination of the issues set forth in their lawsuit, rather that a full discussion of the conflict.

Second, since most cases even in the traditional adversarial system end without a full resolution of those legal issues, we are wasting a lot of resources preparing for an event (trial) that in most cases will not take place. And even in the cases that are disposed of by motion or trial, and thus obtain an adjudication of what the re-framed conflict is now about, the parties are often left unsatisfied with that resolution. And not just because the result may have gone against their side, but also because the case may have been decided based on an issue that is different from what was really troubling them.

The third problem is that the adversarial system encourages the parties to act in an antagonistic manner. The initial framing of the dispute creates new issues for the parties to contend over, and their conduct of the lawsuit or arbitration allows the parties to perpetrate fresh outrages on each other. It does not lead the parties to a different path of problem-solving and accommodation. Not right away, anyway. Before they get to that point, they are likely to inflame the dispute, and create new disputes. 

If we could get parties to frame a dispute in a more constructive way from the outset, that might lead them more quickly to more constructive methods of resolving the problem. In my prior post, I suggested that more creative use of demand letters might help create that constructive atmosphere. I think there is also a need for a more formal mechanism of initiating conflict resolution that does not require the parties to head down a destructive and wasteful path. Instead of assuming that the dispute is going to be resolved by an adjudications of the legal issues raised in the pleadings (which even in the traditional system, does not happen in most cases anyway), why not start off assuming that the dispute will be resolved by negotiated agreement, and assist the parties in that process?

It would be helpful to establish a more formal protocol for out-of-court dispute resolution, starting with a notice of dispute rather than a complaint. A complaint invites the defendant to deny the allegations, to file motions, and to raise defenses. A notice of dispute invites the other side to agree that the parties have a problem that needs to be solved. A complaint invites the other side to look for ways to thwart the progress of the action. A notice of dispute could suggest various methods of resolving the dispute, and invite the other side to suggest others.

The pleading stage of a lawsuit is usually followed by the discovery stage, a fresh opportunity for parties to battle over what should and should not be produced. Instead of launching into that battle, a notice of dispute could request an exchange of information and documents that would be helpful to resolving the dispute. It would encourage the parties to agree early in the process on what each side needs from the other.

I've been toying with this idea in my mind for years, thinking that it would be necessary to persuade the court system to change the rules and forms sufficiently to provide a mechanism for alternative forms of dispute resolution. Now that I think that's not likely to happen anytime soon, it's time for parties and lawyers to develop these protocols on their own.

Unless we believe that parties in every case need to engage in adversarial combat before they sit down and resolve the case consensually, just to get it out of their system, parties should understand the value of attempting diplomacy to resolve conflict before resorting to war. It's not that all cases must be resolved by negotiation. There is still a place for hard-fought contests over matters of principle. It's just that we don't need to start off assuming that ALL cases must be resolved by such adversarial means. 

Monday, July 27, 2015


In a prior post, I suggested that in the absence of a thorough re-vamping of the rules of civil procedure, parties and practitioners should try to invent new ways to resolve disputes outside the court system, How exactly would that work?

Let's start by considering how to open a case, both within and outside the court system. If you're having a problem with your neighbor/boss/business partner/stranger, etc., you can't simply ask the court to help you resolve that conflict. Instead you must file a complaint setting forth a cognizable legal claim. You must include all the elements of the claim. You must have damages or an entitlement to equitable relief. You must identify yourself as the victim and the other side as the transgressor. To get inside the door of the courthouse, you are required to act in an adversarial manner, and you must allege wrongdoing on the other party's part.

This is not always a bad way to initiate dispute resolution. A formal complaint does have the advantage of getting the other side's attention, and letting them know that you feel sufficiently aggrieved by their conduct to initiate formal legal action. But it also throws down the gauntlet. In that context, it's hard to resist the temptation to go further than is necessary. So to achieve maximum impact, the plaintiff often includes some causes of action that might be a stretch, and some allegations that verge on hyperbole. That is usually done to let the other side know just how severe the consequences  of their actions might be, but it also frequently provokes outrage, denials and counterclaims. In contested litigation, the pleading process, which in an ideal world would serve the useful purpose of finding out what matters are actually in dispute and what matters are agreed, is more likely to inflame passions on both sides, and drive the parties further from resolution.

For a lot of reasons, some historical, some budgetary, and some moral or philosophical, the courts are not likely to open their doors to disputes that do not meet traditional legal standards. Courts are not likely to turn themselves into dispute resolution centers available to manage any sort of conflict, regardless of whether or not it meets those traditional tests of legal sufficiency. But a lot of conflicts that probably don't meet those requirements seem to find their way into court anyway, simply because there is nowhere else to take them that can provide the same level of gravitas. Which means that the courts spend a lot of time "weeding out" cases that "don't belong" in court, even though they may involve real conflicts that are important to the parties involved. And even for the conflicts that do happen to meet the legal tests of at least successfully alleging a breach of contract, tort, or violation of some other legal interest, people might be surprised to learn that it's still not the courts' primary function to resolve those conflicts. Instead it's the courts' job to determine whether one or both sides is able to prove the alleged violations. In many cases, doing that job might have the effect of resolving the conflict, but it's still not the same thing.

So let's say you want to try to resolve a conflict--whether or not it meets traditional tests of legal sufficiency--outside of court. What you would probably do, outside the court system, to initiate a dispute resolution process is serve a demand letter. The problem with most demand letters--maybe because they're usually drafted by lawyers--is that they often find themselves infected with the same values and methods associated with the adversary system, even though they purport to present a means of resolving disputes out of court.

What that means is that most demand letters are going to contain the same language of legal claims, violations and damages that is contained in complaints. Most are going to threaten the party served with severe legal consequences in the event they do not give in to the party's demands. Even though most demand letters actually invite a negotiated resolution of a dispute, they usually read more as an ultimatum, and many of them seem to leave little room for negotiation. As a result, many demand letters provoke the same kind of angry denials and counter-charges that complaints provoke. Many become the opening salvos in a war of words that will probably end up in court, and only much later return to the negotiating table after a lot of costs and pain have been inflicted by both sides.

Recently I had to respond to a demand letter charging a client with various trademark and false advertising violations. I responded by suggesting that the client was within its rights in some areas but was willing to make certain other changes to its advertising materials in order to resolve the dispute. What I got in reply was a new letter, speaking in the same terms of threats and ultimatums, but demanding only that we do exactly what we had offered to do in response to the original letter! We made the changes, I wrote back thanking the trademark holder's attorney for his cooperation in successfully resolving the dispute for the benefit of both sides, and that was the end of the matter. The point being that lawyers have a hard time getting ourselves out of the mindset of claims and threats and sanctions, and into a different mindset of cooperative dispute resolution. Another point being that demand letters, even though they purport to seek an out of court resolution of a dispute, still operate in the shadow of the court system.

What I'm suggesting is that we might be squandering an opportunity. We ought to try being more creative in framing demand letters in a way that suggests a positive solution to a problem. That usually requires some acknowledgement of the other side's interests, and that can be done without appearing weak.

We should recognize that to frame a dispute only as a legal claim might be an unduly narrow way of looking at the problem. Discussion of the parties' other concerns and interests opens up other ways of potentially resolving the dispute.

We might also consider asking the opposing party to agree that the parties have a conflict, instead of inviting the opposing party to disagree with our characterization of the alleged violation. That would start the parties down a path of agreement, even if the only common ground that can be found at the outset is to the proposition that the parties have a dispute that needs resolving.

Another positive way of framing a demand letter is to invite the other side to suggest a means of resolving the conflict, instead of just demanding that they agree to our terms. That way they are invested from the outset with part of the responsibility for solving the problem.

Granted there are some situations where the stakes are such that you must demand that the other side agree to your terms or face the consequences, but you have to recognize when you take that approach, that if they don't back down immediately, you're just headed for litigation. For a large number of contested disputes it might be more productive to suggest right up front that you are interested in sitting down and resolving the dispute in a way that may satisfy both side's concerns and interests. The vast majority of contested disputes are going to end up in a negotiated resolution eventually anyway. It only makes sense that they start down that path from the outset.

Tuesday, July 14, 2015


The ink is barely dry on the breakthrough agreement reached this week with Iran, requiring that country to eliminate most of its nuclear weapons capacity in exchange for the lifting of economic sanctions, and many critics are already out in full force decrying the agreement. It seems remarkable that they could be so sure of their opposition without having had much time to read or study the text, or consider carefully whether this deal is better than the alternative of continued conflict. (In previous posts--here and here--on this topic, I outlined the way in which I think any negotiated agreement should be evaluated, not by comparing it to the outcome each side would have preferred, but instead by comparing it to the alternative of no agreement.)

But maybe it's not so remarkable that the critics have not even bothered to make what I think is the only relevant comparison. Maybe it would be a futile effort to try to walk them through the text, because their opposition is not fundamentally based on the terms that have been negotiated. They would probably object to any deal that Iran would agree to, because any deal that lifts sanctions will make Iran a more powerful, and therefore dangerous influence in the region. Any deal that allows Iran any weapons development capability at all can be viewed as an attempt to appease a dictatorial regime. Any deal that puts the world on better terms with Iran leads the world into a false sense of security.

It should be acknowledged that the critics have legitimate concerns, and that their arguments cannot be refuted by logic or reason. That is not to say that any of these arguments are right. I happen to think they are all wrong, or at least they are outweighed by the tangible benefits of making peace, and that the alternative of failing to reach agreement is far more dangerous. Still I don't think it's possible to persuade the implacable foes of Iran--or President Obama--of that. They can still respond with cries of appeasement, or with fears of the dangers posed by the Islamic Republic. They can't be proven wrong except by time. I have dealt with parties in conflict enough to know that they usually can't be persuaded by a mathematical demonstration of the benefits of the deal on the table vs. the costs and uncertainties of continued conflict. Instead they must in some other way reach a point where they feel that they can let go of the conflict and accept the deal.

Signing on to a deal with a partner that has attacked or betrayed you in the past always requires a leap of faith, no matter how airtight are the verification procedures for the deal's strictures. Peace always represents a leap of faith. And the arguments in favor of maintaining conflict, and distrusting one's adversaries are usually powerful. That must be why humanity so often resorts to war at the drop of a hat, while establishing peace is a fraught and difficult process.