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 →

What Is Professional “Bad Faith” In Mediation?

By: Donald L Swanson What is professional “bad faith” in mediation? I’m not talking, here, about sanctionable conduct. I’m talking, instead, about things like professional courtesy and civility—a standard of behavior that one professional owes to another to make the professional system work efficiently and effectively. The following are two hypothetical examples of mediation strategies and... Continue Reading →

A Study on Delegating Responsibility for Important Decisions: Application to Mediation?

By: Donald L. Swanson Consumers often delegate the responsibility for making difficult decisions to others. This is the finding of a recent study by two college professors [Fn. 1]. Avoiding Regret v. Avoiding Disappointment The study distinguishes between a consumer’s desire to avoid “regret” and to avoid “disappointment.” While both regret and disappointment “capture a person’s... Continue Reading →

“Can’t Get No Satisfaction” From, (i) Late-In-A-Lawsuit Mediation, and (ii) Type of Mediator

https://m.youtube.com/watch?v=nrIPxlFzDi0 By: Donald L Swanson “Satisfaction” of parties to a mediation is difficult to describe, let alone measure. But a recent study published by the Harvard Negotiation Law Review [Fn. 1] examines the “satisfaction” of mediating parties.  It identifies two items that have a significant effect on a party's “satisfaction”: (i) timing of referral, and (ii)... 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 →

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