Mediation in New Zealand — A Study on How It’s Done

By: Donald L. Swanson Sometimes it’s helpful, in understanding our own situation, to look at someone else’s. Mediation is a common tool for resolving commercial disputes in New Zealand.  A 2017 study of mediation in New Zealand reveals how it's done there: “From Anecdote to Evidence: The New Zealand Commercial Mediation Market [Fn. 1]. General Findings... Continue Reading →

Are Emotional Arguments Helpful or Harmful in Mediating Commercial Disputes?

By: Donald L Swanson Settlement = Assessment of Risks + Math I made up this unsophisticated formula decades ago to explain what happens when a negotiated settlement occurs in a commercial dispute. What I’ve found, since then, is that the formula holds true in the vast majority of cases—even when emotions and tempers are on edge.... Continue Reading →

Caucus Inadequacy and the Joint Session Solution for Multi-Party Mediations

  By: Donald L Swanson Let’s say that a mediation among four parties or more is a “multi-party” mediation. Caucus Inadequacy Here’s how a caucus format works—inadequately—in a mediation among four parties: the mediation starts at 9:00 a.m. with a half-hour joint session to set the rules and format, whereupon, the parties split into sequestered conference... Continue Reading →

Is an Assault Committed During Mediation Protected by Confidentiality?

By: Donald L Swanson Confidentiality is a central tenet of mediation. Without it, mediation cannot function effectively. So, statutes and court rules provide for high levels of confidentiality in the mediation process. But what about an assault occurring within the mediation process? Can a mediator testify about the assault? And what if the assault is directed... Continue Reading →

Empirical Studies and the Mediator’s Proposal — A Portal to Decision

By: Donald L. Swanson Let’s try combining a couple empirical studies on unrelated matters to support the following proposition: --The “mediator’s proposal,” as a form of choice delegation, can help parties reach settlement.  The proposal becomes a portal or entryway to decision. First Study: Delegating Difficult Choices The first study is titled, “Delegating Decisions: Recruiting Others... Continue Reading →

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 →

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