With increasing frequency (often during a mediation) we hear the refrains: “There are just some people I can’t talk to” or “They just don’t listen to reason.” The polarization of society into the “right” and “wrong” camps is undoubtedly a contributory factor to the reticence to engage in difficult but critically important conversations.
While a fascinating social development, the inability to have productive difficult conversations is all too often self-defeating and counterproductive to important negotiations, including those that take place during mediations. A sine qua non of many successful and mutually beneficial business negotiations is truly engaging in positive conflict resolution through knowing how to have difficult conversations effectively.
Mea culpa, but as a traditionalist, "Online Dispute Resolution" (ODR) had absolutely no appeal to me. But could it be that traditionally trained mediators have missed the boat, and there may be a class of mediations that lends itself to some form of ODR either in whole or in part? John F. Kennedy may have said it best, “Change is the law of life. And those who look only to the past or present are certain to miss the future.”
Michigan's business courts continue to have a significant impact on litigation in our state. With an emphasis on efficiency and expediency, judges now encourage parties to exchange information and negotiate settlement earlier than ever, placing mediation, arbitration, and other useful ADR techniques squarely in the spotlight.
Richard Hurford, along with accomplished and well-recognized litigators and ADR practitioners Douglas Toering and Brian Wasson, recently led a discussion regarding the developments in the business courts, a program that was recorded and now available on demand through the Institute of Continuing Legal Education. For more information and to purchase access to the webinar, please visit the ICLE website.
During the past month I have had the good fortune to present to and learn from judges and business in a few different webinars and programs. These presentations underscored how an old idea coined approximately 30 years ago by Mark Galanter is still a goodie and gaining greater currency in the courts – “litigotiation.” With the evolution of judicial case management practices in state and federal courts, litigators would be well served to recognize this evolution and adapt accordingly.
In a recent article, co-authors Hon. John C. Foster, Richard L. Hurford, and Douglas L. Toering reviewed the statute establishing Michigan's business courts, the rationale behind it, and a comparison of arbitration, as well as offering a protocol for pre-litigation mediation.