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 →

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 →

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 →

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 →

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 →

“Can’t Get No Satisfaction” From, (i) Late-In-A-Lawsuit Mediation, and (ii) Type of Mediator By: Donald L Swanson “Satisfaction” of parties to a mediation is difficult to describe, let alone measure. But a recent study published by the Harvard Negotiation Law Review [Fn. 1] examines the “satisfaction” of mediating parties.  It identifies two items that have a significant effect on a party's “satisfaction”: (i) timing of referral, and (ii)... Continue Reading →

The Problem of Mediating While a Court Ruling is Imminent

By: Donald L. Swanson “[W]e are unaware of any authority suggesting that a district court may not rule on a pending motion for summary judgment while the parties may be attempting to settle the matter outside of court.” --Third Circuit Court of Appeals in Myrick v. Discover Bank, Case No. 16-1966, fn. 6 (10/7/2016). The... Continue Reading →

Mediating “One-Off Disputes” vs. “Relationship Disputes” — And the Significance of Settlor’s Remorse in Each

By: Donald L. Swanson Like snowflakes and fingerprints, no two mediations are alike. And the mediator, in any given dispute, must adjust to the peculiarities of the issues and parties at hand. Take, for example, differences between mediating what I’ll call “one-off disputes” vs. “relationship disputes” in business contexts. Definitions Let’s say, for discussion purposes, that:... Continue Reading →

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 →

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