Studies on Rejection v. Choice Decisions: Implications for Mediators?

By: Donald L. Swanson Making an affirmative choice among alternatives is one way to make a decision. Rejecting an alternative is another way. Research Results Research shows that these two differing ways of making decisions often produce differing results. That’s because people “adopt different selection criteria” and “allocate different weights and choices” in these two ways... Continue Reading →

Legal Standard for Imposing Civil Contempt

By: Donald L. Swanson On June 3, 2019, the U.S. Supreme Court issued its opinion in the Taggart v. Lorenzen case. The Question The question before the Supreme Court, in Taggart v. Lorenzen, “concerns the legal standard for holding a creditor in civil contempt when the creditor attempts to collect a debt in violation of a... Continue Reading →

Studies Show that Humility and Pursuit of Virtue Lead to Wisdom in Resolving Conflicts: Implications for Mediation?

By Donald L. Swanson “Soloman’s Paradox” = “we tend to reason more wisely about other people’s problems than our very own” (aka, “Plenty of wisdom for others; but not for oneself”). [Fn. 1] “King Solomon, the third leader of the Jewish Kingdom, is thought of as a sage and a man of great wisdom. People traveled... Continue Reading →

How Bankruptcy Reorganization is Good for Local Communities: aka, Why S. 897 & S. 1091 Need to be Enacted at Once

By: Donald L. Swanson Business reorganization in bankruptcy gets a bad rap. Here’s why: “bankruptcy” deals with failed promises to pay (if you google synonyms for “failure,” the first word to appear is “bankruptcy") and implies a moral shortfall in the minds of many. That’s unfortunate because business reorganization can be a good thing.  When utilized... Continue Reading →

Mediation: The Go-To Process for Large-Scale Sexual Abuse Claims in Bankruptcy

By: Donald L. Swanson Mediation has become the go-to process for dealing with large-scale sexual abuse claims in bankruptcy. The latest example is the Chapter 11 case of In re USA Gymnastics, filed on December 5, 2018, at Case No. 18-09108, in the Southern Indiana Bankruptcy Court. Background USA Gymnastics is where Larry Nassar volunteered as... Continue Reading →

Finality of Bankruptcy Court Orders for Appeal: U.S. Supreme Court Will Weigh In (Ritzen v. Jackson)

By: Donald L. Swanson “Appellate deadlines cannot serve their purpose when their trigger is unclear.” --U.S. Sixth Circuit Court of Appeals in Ritzen v. Jackson. This should be interesting. On May 20, 2019, the U.S. Supreme Court granted certiorari to decide whether the denial of a motion for relief from automatic bankruptcy stay is appealable as a... Continue Reading →

What Is Professional “Bad Faith” In Mediation?

By: Donald L Swanson What is professional “bad faith” in mediation? I’m not talking, here, about sanctionable conduct. I’m talking, instead, about things like professional courtesy and civility—a standard of behavior that one professional owes to another to make the professional system work efficiently and effectively. The following are two hypothetical examples of mediation strategies and... Continue Reading →

Rejected Executory Contracts Made Simple: Mission v. Tempnology

By: Donald L. Swanson “Rejection of a contract—any contract—in bankruptcy operates not as a rescission but as a breach.” Essential declaration of law from U.S. Supreme Court opinion on trademark issues in Mission Product Holdings, Inc. v. Tempnology, LLC, (Case No. 17-1657), issued May 20, 2019. Photocopier Lease Illustration The Supreme Court’s opinion illustrates and clarifies how... Continue Reading →

A Study on Delegating Responsibility for Important Decisions: Application to Mediation?

By: Donald L. Swanson Consumers often delegate the responsibility for making difficult decisions to others. This is the finding of a recent study by two college professors [Fn. 1]. Avoiding Regret v. Avoiding Disappointment The study distinguishes between a consumer’s desire to avoid “regret” and to avoid “disappointment.” While both regret and disappointment “capture a person’s... Continue Reading →

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