The Problem of Caucus in Mediating Business Disputes

By: Donald L Swanson “The Mediator is a nice guy, but he needed to pound harder on the other side.” —A disappointed litigator on why a mediation did not achieve settlement. This quote is a common post-mediation refrain. A Fundamental Error The quote contains a fundamental error. The error is this assumption: it is the mediator’s... Continue Reading →

Nothing is Permanent: Mediation of International Commercial Disputes

By: Donald L Swanson HISTORY: “Prior to World War II, most international commercial disputes were resolved through consensual procedures such as mediation”—mediation was viewed by many as “an inclusive and effective cross-cultural approach to problem solving.” RECENT TIMES: Mediation is infrequently used in international commercial disputes—mediation is viewed by many as “a futile and potentially expensive... Continue Reading →

What’s a Mediator To Do When Parties Seem Unaware of an Important Rule of Law?

By: Donald L. Swanson The title of this article is the subject of an advisory opinion from New York’s Mediator Ethics Advisory Committee.  What happened An attorney and client are mediating a fee dispute.  The mediator realizes the parties’ fee dispute is covered by a New York law requiring the attorney to notify the client of... Continue Reading →

Mediating a Feud: The Problem of Envisioning Future Effects

By Donald L. Swanson Feuding parties are blinded by their feud. And they cannot envision the future of their feud with accuracy. An Ancient Illustration from London A recent essay [Fn. 1] provides details of a multi-year feud between London-area grocers, back in the early 1600s. That feud involved two lawsuits, a criminal complaint, and extensive... Continue Reading →

What To Do When A Party Is Secretly Taping A Mediation Session

By: Donald L. Swanson The State of New York has a “Mediator Ethics Advisory Committee.” A mediator asked this Committee for an advisory opinion on what to do in the following circumstances (here's its opinion). Facts During a private session, the mediator notices that a party has a tape recorder on her lap. The mediator asks if... Continue Reading →

Effect of Interruptions on Decision Making: Implications for Mediation?

By: Donald L. Swanson “Interruptions increase risk taking by reducing apprehension.” From “The Effect of an Interruption on Risk Decisions” [Fn. 1]. Seven studies by three professors focus on the effect of a brief interruption that occurs when a person is confronted by the need to make a risky financial decision. My point in this article... Continue Reading →

Creativity in Mediation: An Important Role

By: Donald L. Swanson Here are a couple assumptions: Mediation is a creative process: it allows parties to think outside the box, discuss underlying issues, and customize a creative resolution. Adjudication, by contrast, is not: it resolves specific issues identified in pleadings. A Study A study titled “Creativity in Court-Connected Mediation: Myth or Reality?” [Fn. 1]... Continue Reading →

A Party’s Obligation to Pay a Mediator’s Fee is Enforced

By Donald L. Swanson On May 28, 2019, a U.S. District Judge issued an Order insisting that the Defendant pay mediator fees of $1,850.00 for a cancelled mediation. The case is Linares v. Suarez, in the U.S. District Court for Florida’s Middle District (Case No. 8:18-cv-985). Facts Here’s what happened. --Mediation Scheduled. Linares sued Suarez for... Continue Reading →

Must Mediators of Disputes in Litigation be Lawyers?

By: Donald L. Swanson Many mediators, in a variety of contexts, are not lawyers. In the mediation of lawsuit disputes, however, lawyers predominate. And that makes practical sense—especially in complex cases. But in lawsuits, even complex ones, the mediator is not required to be an attorney. At least, that’s the opinion of the Attorney General for... Continue Reading →

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