Enforcing Agreements To Mediate And To Arbitrate (Garcia v. ISS Facility)

Rules for overlapping activity (photo by Marilyn Swanson) By: Donald L Swanson Agreements to mediate and agreements to arbitrate are both enforceable and effective.  But how they are used together, when they overlap, can get tricky.  That’s illustrated by the case of Garcia v. ISS Facility Services, Inc., et al.  The case begins with a U.S.... Continue Reading →

How Mediation Helps Resolve the Unsolvable (In re Zimmer)

Unsolvable? (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Zimmer, Case No. 17-20543 in the Bankruptcy Court for the Western District of Pennsylvania (issued December 14, 2020, Doc. 452). The case is a mess—you’ve got to read it to believe it. Beginning Facts Daniel and Lucille Morris (the “Morris couple”) are... Continue Reading →

Promoting Honesty In Mediation By Face-To-Face Interactions (A Study)

Face-to-face interactions (photo by Marilyn Swanson) By: Donald L Swanson People are “more honest when communicating face-to-face than through an intermediary,” and that is true in “even the briefest of face-to-face interactions.” Study Such are the findings of a study titled, “I Can’t Lie to Your Face.” [Fn. 1] Face-to-face interactions in the study involve visual... Continue Reading →

“Progress” As “Success” In Mediation: The Subchapter V Experience, & A Study

Making progress with each step (photo by Marilyn Swanson) By: Donald L Swanson Very positive.  That’s the experience in Subchapter V so far, with the “facilitate” role of a trustee in achieving consensual or uncontested plan confirmations.  What the Subchapter V experience demonstrates is this: early involvement of an independent person, focused on achieving a consensual... Continue Reading →

Delayed Decisions = A Perception Of Doubt (Implications For Mediation?)

By: Donald L Swanson A 2014 study looks at how people make judgments, based on the time it takes others to reach a decision. [Fn. 1] The central finding of the study is this: Long decision times are viewed as evidence of the decision maker’s doubt; andOthers make decisions based on the degree of doubt perceived.... Continue Reading →

Friendliness Within Hostile Relationships–A Barrier to Negotiation?

A friendly fox? (Photo by Marilyn Swanson) By: Donald L Swanson A study of social behavior is titled, “Barriers to Transforming Hostile Relations: Why Friendly Gestures Can Backfire.”  [Fn. 1] The findings and implications of this study are significant for mediation and other negotiation contexts! Background & Essential Finding Everyone knows that friendliness builds rapport and... Continue Reading →

Judge Rosen: On Mediation In City Of Detroit Bankruptcy (Part III, Getting The Funds)

https://youtu.be/Nzwt4vdHj70 By: Donald L Swanson Hon. Gerald E. Rosen (Ret.) serves as mediator, arbitrator and neutral evaluator in high-level business cases for the JAMS office in Detroit.   Previously, Judge Rosen served as Chief Judge of the U.S. District Court for the Eastern District of Michigan, when the City of Detroit filed its Chapter 9 bankruptcy.  Shortly thereafter,... Continue Reading →

Judge Rosen: On Mediation In City Of Detroit Bankruptcy (Part II, The Concept & The Human Element)

https://youtu.be/k9xKjDz1IfM By: Donald L Swanson Hon. Gerald E. Rosen (Ret.) serves as mediator, arbitrator and neutral evaluator in high-level business cases for the JAMS office in Detroit.   Previously, Judge Rosen served as Chief Judge of the U.S. District Court for the Eastern District of Michigan, when the City of Detroit filed its Chapter 9 bankruptcy.  Shortly thereafter,... Continue Reading →

Judge Rosen: On Mediation In City Of Detroit Bankruptcy (Part I, Getting Started!)

https://youtu.be/A0tM0kUr5Cc By: Donald L Swanson Hon. Gerald E. Rosen (Ret.) serves as mediator, arbitrator and neutral evaluator in high-level business cases for the JAMS office in Detroit.   Previously, Judge Rosen served as Chief Judge of the U.S. District Court for the Eastern District of Michigan, when the City of Detroit filed its Chapter 9 bankruptcy. ... Continue Reading →

The ADR Spectrum: Subchapter V Adds A New / Unique ADR Role

The ADR Spectrum By: Donald L Swanson Alternative dispute resolution (“ADR”) has always referred to the use of a neutral third party to help resolve disputes.  But the recent addition of Subchapter V to the Bankruptcy Code has changed that.  I’ll try to explain. Alternative Dispute Resolution Act of 1998 28 U.S.C. § 651(a) is part... Continue Reading →

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