Mediation: The Same In War And Peace?

War and Peace By: Donald L Swanson Many factors motivate disputing parties parties to mediate;Disputing parties are rational actors, driven by self-interest;There is a a strong relationship between conflict costs and the willingness of the parties to mediate; andA precondition for negotiations is a perception by the disputing parties that, (i) a negotiated outcome is preferable... Continue Reading →

When is a Dispute Ripe for Mediation? (In re Diocese of Buffalo)

Are they ripe? (Photo by Marilyn Swanson) By: Donald L Swanson The timing of mediation efforts in litigation is important (and can be tricky).  Studies show that early is better than late.  But in early mediation efforts, a tension exists between, (i) acting promptly, and (ii) assuring that parties have adequate information to make informed decisions.... Continue Reading →

Mediation Costs In Sanctions For Frivolous Appeal (Quincy Bioscience v. Ellishbooks)

Frivolous? (photo by Marilyn Swanson) By Donald L. Swanson The opinion is Quincy Bioscience, LLC v. Ellishbooks, et al., Case No. 19-1799 (7th Cir.) (decided July 22, 2020).   The procedural background is this: Ellishbooks loses a case before the U.S. District Court for the Northern District of Illinois (Doc. 1:17-cv-08292) and appeals to the Seventh... Continue Reading →

Pandemic-Induced “Impossibility” Of Performing A Mediated Settlement? (Belk v. LeChaperon)

Impossibility? (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is Belk, On behalf of herself and All others similarly situated v. Le Chaperon Rouge Co., et al., Case No. 1:18cv1954 in U.S. District Court, N.D. Ohio (decided July 6, 2020). The opinion addresses Plaintiffs’ Motion to enforce a mediated settlement agreement.  Defendants oppose the Motion on grounds... Continue Reading →

“Unavailable” Witness (Under Hearsay Rules) In A Zoom Trial?

Access is unavailable (photo by Marilyn Swanson) By Donald L. Swanson Like many attorneys, I’ve recently participated electronically in many court hearings, mediations and trials. That participation is via Zoom and similar platforms (I’ll refer to all, collectively, as “Zoom”). The Zoom technology is wonderful!  It is revolutionizing litigation processes.  And the resulting changes are here... Continue Reading →

When Mediation Confidentiality Doesn’t Apply–As A Matter of Law (Northern v. Coffey)

Unlimited access (photo by Marilyn Swanson) By: Donald L Swanson Mediation confidentiality is sacrosanct.  Or, so we are all taught in mediation training courses. But in a New Jersey case, from earlier this year, mediation confidentiality is not sacrosanct at all: communications before, during and after mediation sessions are testified to profusely by parties, attorneys and... Continue Reading →

Why Early Mediation is More Effective in Bankruptcy Reorganization Disputes than in Regular Commercial Litigation

By: Donald L. Swanson “’Early’ (mediation) is good and usually best”; but “Lawyers are not easily persuaded away from the view that they ‘need more info’ before they engage settlement discussions in mediation”; and “in many cases, they may be right.” --Comment by a mediation professional on a discussion board. I agree with this comment—100%—for regular... Continue Reading →

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 →

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