How a Bankruptcy Court Refuses to Approve a Mediated Settlement Agreement

By: Donald L. Swanson One of the crucial rules of mediation is this: all pertinent parties need to be included in the mediation session. That’s because excluded parties can blow-up a mediated deal. Bankruptcy System In bankruptcy, interested parties are everywhere—and they can’t all be included in every mediation. That’s a problem. So, the Bankruptcy Code... Continue Reading →

Practicing Attorneys (Not Sitting Judges) Serving as Mediators: An Innovation from the 1970s

By: Donald L Swanson The use of practicing attorneys -- instead of sitting judges --  to serve as mediators is an early-innovation from Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals. This innovation occurs, back in the 1970s, amid “wide disagreement” about the effectiveness of attorneys as mediators. Back then, Judge... Continue Reading →

Mediator Hostility is Effective?!

By: Donald L. Swanson What follows is confusing and disorienting . . . and a little disturbing. A 2017 academic article has this title: “The Surprising Effectiveness of Hostile Mediators” [Fn. 1]. And it reaches this conclusion: “As in prior studies, negotiators were more willing to reach agreement after interacting with a hostile mediator than a... Continue Reading →

Optimum Time For Mediation: At Close Of Pleadings & Before Contested Motions Are Filed

By: Donald L Swanson Mediation in civil litigation, here in the States, typically occurs as discovery winds down and as a trial date is in the offing. And, typically, mediation happens at the initiative of the parties—not by court referral. That’s how it’s done. Singapore Study But there are other ways to do it. In Singapore,... Continue Reading →

How Mandated Mediation Works — Even When It Doesn’t

By: Donald L. Swanson The U.S. District Court for the Middle District of Florida has a mediation policy that’s mandatory. A dispute can be excused from mediation, however, “upon a determination” that it “is not suitable for mediation.” A recent case shows how the Middle District’s policy of mandated mediation offers more than one road to... Continue Reading →

A Formula Governing the Settlement of Business Disputes

By: Donald L. Swanson Settlement = Assessment of Risk + Math This formula describes the structural supports for settling a business dispute. And I’m still convinced of the formula's accuracy, based on long experience. The constancy of this formula’s application means that business people are, ultimately, rational beings—even when emotions run high. I mentioned the formula... Continue Reading →

Mediation Agreements as “Res Judicata”: Solid as Rock

By: Donald L. Swanson "mediated agreements are accorded the same res judicata effect and enforceability as a . . . judicial decree.” --Hoglund v. Aaskov Plumbing & Heating, No. WCB-05-280, slip op. (Maine S.Ct. Apr. 26, 2006) The foregoing quotation is the strongest articulation by a court I've seen on the strength and effectiveness and... Continue Reading →

Mediation Lesson from Northern Ireland Peace Process: Finding Core Principles is the First and Primary Task

By Donald L. Swanson Several years after the end of World War I, Winston Churchill penned these words about Northern Ireland: “The whole map of Europe has changed, but as the deluge subsides and the waters fall short, we see the dreary steeples of Fermanagh and Tyrone emerging once again. The integrity of their quarrel is... Continue Reading →

Early Mediation is Effective in Bankruptcy — More So Than in Other Disputes

By: Donald L. Swanson "When is the optimum time to mediate?" A 2015 Study That question is addressed in a 2015 study of 400 mediations titled, “Inside the Caucus: An Empirical Analysis of Mediation from Within.” These mediations were conducted by one of the study's authors, between 2008 and 2013, on employment disputes (e.g., discrimination and... Continue Reading →

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