Settlor’s Regret in Mediation — After It’s Too Late to Back Out

By: Donald L. Swanson “There was a settlement . . . many arguments have been constructed to get around that unfortunate fact, but it’s a fact.” --Bankruptcy Judge, during hearing on Motion to enforce a mediated settlement in Lehman Brothers bankruptcy. It’s common in business bankruptcies for the estate to pursue preference and fraudulent transfers claims.  Sometimes,... Continue Reading →

“I’m Not Comfortable With Requiring Mediation” = Unfounded Squeamishness

By: Donald L Swanson “Any district court that elects to require the use of . . . alternative dispute resolution in certain cases may do so . . . with respect to mediation.” Alternative Dispute Resolution Act of 1998 (28 U.S.C. § 652(a)). “I don’t feel comfortable requiring parties to mediate.” Ubiquitous sentiment among judges. I... Continue Reading →

Varying Ways to Succeed as a Mediator

By:  Donald L. Swanson We “sought to determine whether the reasons for mediator success are the same for all successful mediators, or whether different mediators succeed for different reasons.” Prof. Stephen B. Goldberg and Margaret L. Shaw in a 2008 report titled, “The Secrets of Successful (and Unsuccessful) Mediators.” The study: In their study, Prof.... Continue Reading →

Mediation and Early Neutral Evaluation in Consumer Disputes — England, Wales And ABI Consumer Commission

By Donald L. Swanson England and Wales have a Civil Justice Council that, in 2016, formed an ADR Working Group to "review the ways in which" mediation is "encouraged and positioned within the civil justice system."  In October, 2017, the Working Group issued its "Interim Report." Low Value Cases and Litigants Without Means One focus of... Continue Reading →

Contingent Fees or Success Fees for Mediators: Why Not?

By: Donald L. Swanson I have a new LinkedIn friend, Mark Winters from the U.K., who’s developed a mediation practice within an unusual context. And he’s making it work. Since the practice arose from his own creativity and out of unusual circumstances, he’s unbounded by common norms and can do creative things. One creativity is this:... Continue Reading →

2017 ABA Report on Research of Mediation Techniques — and the Need for Research on Bankruptcy Mediation

By Donald L. Swanson On June 12, 2017, the American Bar Association’s Section of Dispute Resolution published its “Report of the Task Force on Research on Mediator Techniques.” Notably, this report makes no reference to any research on bankruptcy mediation — not even a single study. The following article consists of four parts: --Summary of the... Continue Reading →

How to Fail as a Mediator

By:  Donald L. Swanson We explore “the ways in which” unsuccessful mediators “failed to satisfy” the expectations of their mediating parties. Prof. Stephen B. Goldberg and Margaret L. Shaw in a 2008 report titled, “The Secrets of Successful (and Unsuccessful) Mediators.” In the “unsuccessful mediators” portion of their study, Prof. Goldberg and Ms. Shaw follow-up... Continue Reading →

Gotta Trust the Mediation Process

By: Donald L. Swanson If there’s anything the history of mediation tells us, it’s this: --We’ve gotta trust the process. Here’s an example, that’s happening right now, of how a failure to trust the mediation process creates issues: In re Las Cruces Country Club, Inc., Case Nos. 16-12947 & 16-12947-j7 (Bankry., D. New Mexico) (the debtor... Continue Reading →

Ignorance of Mediation Program Availability “Is Not Bliss”: A New Empirical Study

By: Donald L Swanson Voluntary mediation programs are often underutilized. This is an undeniable problem. One source of the problem is ignorance of mediation’s availability. We now have empirical proof that this is so. Ignorance is Not Bliss Prof. Donna Shestowsky [Footnote 1] conducted an empirical study titled, “When Ignorance is Not Bliss” [Footnote 2].  Her... Continue Reading →

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