On Bankruptcy and Mediation
Reflecting (photo by Marilyn Swanson) By: Donald L Swanson A study titled, “What Works,” examines the effects of mediator strategies and behaviors on case outcomes in small claims cases. [Fn. 1] The study gathers information on both the short term (immediately after the mediation occurs) and long term (up to twelve months later) effects of mediator... Continue Reading →
A Caucus? (photo by Marilyn Swanson) By: Donald L Swanson A study [fn. 1] of mediations in small claims cases reaches this conclusion: The over-use of a caucus format is bad for mediation. Findings Specific findings supporting such conclusion include the following.[Fn. 2] In a small claims mediation, a greater percentage of time spent in caucus:... Continue Reading →
By: Donald L Swanson Every now and then we get a picture of actions in mediation that result in sanctions. Studying such a picture can be helpful to us all—by illustrating the types of actions to be avoided. Here is one such picture from the legal opinion of Vittiglio v. Vittiglio, 297 Mic.App. 391, 824 N.W.2d... Continue Reading →
In-Person (Photo by Marilyn Swanson) By: Donald L. Swanson Mediators prefer Online Dispute Resolution to In-Person Mediation, in mediations conducted by the U.S. Equal Employment Opportunity Commission (“EEOC”). That’s the finding from a study of mediators who served in the mediation program conducted by the U.S. Equal Employment Opportunity Commission (“EEOC”). The report of the... Continue Reading →
In-Person (Photo by Marilyn Swanson) By: Donald L. Swanson “Nearly 70% of the participants prefer Online Dispute Resolution [e.g., via Zoom] to In-Person Mediation . . . Only 13% preferred In-Person Mediation in the future.” That’s the finding from a study of party-participants in the mediation program conducted by the U.S. Equal Employment Opportunity Commission... Continue Reading →
Transforming (photo by Marilyn Swanson) By Donald L. Swanson A study report on mediators is, “Becoming the change we wish to see: The unexpected benefits of conflict resolution work,” by Susan Raines, published January 2018 in Conflict Resolution Quarterly, at 319-327. The author begins the study report like this: “Gather any group of mediators, ombuds, relief... Continue Reading →
Direct discussions! By: Donald L. Swanson Allowing direct discussions between parties, when mediating a commercial case, can be an intimidating—and tricky—proposition. But it is effective when allowed . . . despite obvious concerns. Here are four concerns, about direct discussions between mediating parties, based on four goals of mediation: The first goal is to assure... Continue Reading →
Inherent power (Photo by Marilyn Swanson) By Donald L. Swanson “[O]rdering mandatory mediation is a proper exercise of a district Court’s inherent power.” That’s the “core holding” of the U.S. First Circuit Court of Appeals in its In re Atlantic Pipe Corp. opinion.[Fn.1] What follows is a summary of that opinion. Facts The dispute is over... Continue Reading →
Advocating for a position (photo by Marilyn Swanson) By: Donald L Swanson “Neutral Offering Solutions had long-term negative associations” in mediation. That’s a finding from a study of small claims mediations, titled “What Works” [Fn. 1] “Neutral Offering Solutions” refers to a mediator offering ideas for solutions and then advocating for those ideas. Study’s Conclusion In... Continue Reading →
Deprived of usefulness (photo by Marilyn Swanson) By Donald L. Swanson An appellate court is deprived of continuing jurisdiction over an appeal once the disputing parties reach a settlement. There’s nothing remarkable about that proposition. But what's interesting is: the technical, legal and constitutional foundation behind that proposition; which is provided by the U.S. Court of... Continue Reading →
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