The First-Ever Formal Mediation in Federal Court?

Judge Irving Kaufman By: Donald L. Swanson Judge Irving Kaufman is famous for many things, such as presiding over the Rosenberg espionage trial and rejecting the U.S. government’s attempt to deport John Lennon to the United Kingdom. But Judge Kaufman’s greatest legacy may be for his role in developing mediation as a primary dispute resolution... Continue Reading →

ADR Act of 1998: A Reflection on Its Effectiveness and Shortfalls

By: Donald L Swanson October 31, 2018, was the 20th anniversary of the Alternative Dispute Resolution Act of 1998 (the “ADR Act”). [Fn. 1] The ADR Act has had a profound impact on the practice of law throughout the federal court system. However, it also has shortfalls that are yet to be rectified. A Mediation Model:... Continue Reading →

When a Case is “Ripe” for Early Mediation

By Donald L. Swanson A 2018 mediation study [Fn. 1] tests the following hypothesis: That referral of a lawsuit to mediation at an early stage is more likely to lead to settlement than a later referral. What the study finds is that timing is a complex issue that’s influenced by and “could be a proxy for”... Continue Reading →

How To Mandate A Voluntary Mediation System That Thrives: A Minnesota Example

By Donald L. Swanson Back in 1994, Minnesota state courts adopt a "mandatory consideration" rule for alternative dispute resolution ("ADR") possibilities. The rule works, back then, like this: Attorneys are required to, (i) consider using ADR in every civil case, (ii) discuss ADR with their client(s) and opposing counsel, and (iii) advise the court of their... Continue Reading →

“Voluntary” Ideal Leads to Under-Utilization of Court-Connected Mediation Programs: An Experiment Solution

By: Donald L Swanson In many courts, these days, mediation reigns supreme. This is so-much-so that, court reporters complain about mediation cutting into their business; judges complain about cases settling in mediation and no one trying cases any more; and attorneys in casual conversations commonly talk about preparations for and successes in mediation, not trial. Such... 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 →

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 Confidentiality: Defenses Raised and Rejected

By Donald L. Swanson The Judges are irritated, to begin with. If anything is clear in In re Anonymous, 283 F.3d 627 (4th Cir. 2002), it’s this: the Judges on the U.S. Court of Appeals are more-than-slightly unhappy with the two attorneys in the case. A Confidentiality Issue The Court hauls two competing attorneys before the... Continue Reading →

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