There are Problems Mediation Can’t Solve (Ripa v. Perfetti)

By: Donald L Swanson Lots of things are wrong with the case of Ripa v. Perfetti [Fn. 1]. The ills start with this fact: all parties are pro se.  The case illustrates, once again, that limitations exist on the problems mediation can solve. In this case, a frustrated Bankruptcy Judge encourages the parties to mediate: one side... Continue Reading →

When To Start Drafting the Mediation Settlement Agreement?

Getting started (Photo by Marilyn Swanson) By: Donald L Swanson The American Bar Association published an article titled, “Draft the Settlement Agreement First,” by John Bickerman. [Fn. 1]  The article begins with the following: “One of the most effective techniques I know and use as a mediator is to begin negotiating the terms of the settlement agreement before... Continue Reading →

A Study of Anger and Its Effects — Implications for Mediation?

What is his perspective? (photo by Marilyn Swanson) By: Donald L Swanson Have you ever been in a mediation—or other negotiation context—where one party blows-up in a fit of anger?  And wondered about the effect of that moment on the negotiation effort? A 2019 study on "Losing your temper" shows that “anger reduces perspective-taking.” [Fn. 1]... Continue Reading →

Refusing a Mediation Opportunity

By: Donald L. Swanson “By providing you with this notice, [creditor’s name] is merely complying with the notice requirements under the Nebraska Farm Mediation Act. [Creditor’s name] does not, in any way, acquiesce to participation in the mediation process with you.” --Two sentences from a creditor’s notice of mediation rights to a debtor under Neb. Rev.... Continue Reading →

A Study of Mediation Transcripts and Recordings

By: Donald L. Swanson Studying mediation is hard to do—because of confidentiality concerns. One study from decades past, however, gets around the problem. It focuses on a course in the UCLA mediation clinic in which students act as mediators. The study looks at transcripts and recordings of mediation sessions (made with consents of the parties for... Continue Reading →

Vacating A Court Order That Violates A Mediated Settlement Agreement—For “Mistake” (In re Mattox)

Disputed property line is on the west side of this photo By Donald L. Swanson The opinion is In re Mattox, Case No. 18-10101-13 in the Kansas Bankruptcy Court, decided October 19, 2020 (Doc. 93). Homestead Exemption Dispute Here’s what happened. Debtor files Chapter 7 bankruptcy, claiming a homestead exemption in 43 acres of property, having... Continue Reading →

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 →

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