A Mandatory Mediation Process In New York — With Sanctions Procedures

New York By: Donald L Swanson As necessity is the mother of invention, so mandatory mediation programs are the progeny of overburdened courts and backlogged dockets. That’s what happened, a couple years ago, in a New York appellate court: this overburdened court, with seriously-backlogged dockets, instituted mandatory mediation as one of a series of steps to... Continue Reading →

How Multiple Settlement Alternatives in Mediation are a Disadvantage

By: Donald L Swanson Conventional wisdom says that negotiators prefer multiple settlement alternatives, over a single alternative, because they expect to get better deals when they have more than one. However, such conventional wisdom is wrong, according to a study [Fn. 1] that uses five experiments with simulated negotiations. Multiple Alternatives = Disadvantage in Negotiations The... Continue Reading →

Pandemics (Old & New), Prisons, And A Mediation

By: Donald L Swanson Pandemics and prisons don’t go together well -- this we’ve learned from long history.   What follows are three examples: one is new (with mediation involved), and two are old. 2020 -- Covid A June 5, 2020, order from the New Jersey Supreme Court deals with an old issue: prisons and pandemics. The... Continue Reading →

Mediation: Sometimes A Judge Must Rule Before Parties Will Settle (In re C2R)

Waiting a tad-too-long? By: Donald L. Swanson It happens in the Chapter 11 case of In re C2R Global Manufacturing, Inc., (Case No. 18-30182 in Eastern Wisconsin Bankruptcy Court): the judge must rule before the parties will settle. That may seem a tad-too-late. But it happens, and In re C2R is Exhibit A. Disputes C2R Global... Continue Reading →

Inertia in Decision Making: Implications for Mediation?

Inertia (photo by Marilyn Swanson) By: Donald L Swanson There is “a tendency for decision makers to choose a status quo option.” [Fn. 1] In many decision situations there is a status quo option, which may be the result of a previous choice or may simply be the option that ensues if no action is taken.... Continue Reading →

Succeeding at Small Claims Mediation: England and Wales Showing How It’s Done

England (photo by Marilyn Swanson) By: Donald L Swanson Small claims mediation efforts often languish. Many small claims parties don’t choose to use mediation—even when mediation is offered at a reduced fee or without charge. How can this be? It’s a mystery. Some small claims mediation efforts, by contrast, are successful. Here’s an example. High Volume... Continue Reading →

Japan’s Nuclear Disaster Fund, A U.S. Court, & Mediation (Imamura v. GE)

By: Donald L Swanson The opinion is Imamura v. General Electric Co., Case No. 19-1457 in the U.S. First Circuit Court of Appeals (issued April 24, 2020).  Facts In 2011, an earthquake-induced tsunami struck the Fukushima Daiichi Nuclear Power Plant in Japan, triggering explosions and a nuclear disaster, which destroyed property and livelihoods of residents in... Continue Reading →

Mediation Continuums: How They Overlap

By: Donald L. Swanson “Joint Session <———> Caucus Only” "Fact Disputes <———> Law Disputes"  A continuum? (Photo by Marilyn Swanson) These are two sets of mediation continuums. Here’s a theory I've heard on how the “joint session” to “caucus only” continuum and the "fact disputes" to "law disputes" continuum overlap in commercial cases.  I'd like to... Continue Reading →

A Survey of Professionals on Mediation of International Commercial Disputes

By Donald L. Swanson On December 20, 2018, the United Nations General Assembly adopted a United Nations Convention on International Settlement Agreements Resulting from Mediation, and 52 countries have signed that Convention.  It deals with enforcing mediated settlements of international commercial disputes. A Survey Leading up to adopting the Convention, studies were made to determine the... Continue Reading →

Zoom Mediation Works!

By: Donald L Swanson “All your assumptions on this are wrong.” --A visionary, back in 1999, on why video communications will work. Change It was nearly a decade ago, when I suggested participating in a mandated and far-away mediation by Skype. The Judge said, “No, because face-to-face communication is essential to mediation.” It was nearly a... Continue Reading →

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