How a Mediator’s Failure to Disclose a Prior Mediation Creates Problems

By: Donald L. Swanson Mediators are always concerned about conflicts of interest and appearances of conflict—and of making sure pertinent details are disclosed before accepting a mediation engagement. It’s not very often that things work the other way: that a mediator must disclose a mediation before accepting another professional engagement. But here’s a July 2018 appellate... Continue Reading →

Contingent Fees or Success Fees for Mediators: Why Not?

By: Donald L. Swanson I have a new LinkedIn friend, Mark Winters from the U.K., who’s developed a mediation practice within an unusual context. And he’s making it work. Since the practice arose from his own creativity and out of unusual circumstances, he’s unbounded by common norms and can do creative things. One creativity is this:... Continue Reading →

The “Estate Neutral” as an Expert Witness, a Mediator and a Financial Advisor

By: Donald L Swanson When ABI’s Commission to Study the Reform of Chapter 11 issued its Final Report in 2014, one creative approach it recommended is to authorize a new bankruptcy position: the "estate neutral." The Final Report says that chapter 11 "needs to offer tools to resolve a debtor’s financial distress." The estate neutral would... Continue Reading →

How, (i) Early Neutral Evaluation is Tricky, and (ii) Neutral Mediators Assist Parties in Evaluation

By Donald L. Swanson The problem with early neutral evaluation is this: it’s a prediction. An early neutral evaluator is an expert, who is trying to predict what a judge, jury or appellate court will decide about the merits of a dispute. Early Neutral Evaluation – A Tricky Business Prognostication is always a tricky business.  And... Continue Reading →

Mediator vs. Early Neutral Evaluator: A Confusion of Roles

By Donald L. Swanson Examples of “an alternative dispute resolution process” include, “early neutral evaluation, mediation, minitrial, and arbitration.” --28 U.S.C. § 651(a) (from the Alternative Dispute Resolution Act of 1998). Over time, the word “mediation” has come to be a shorthand term encompassing all non-binding alternative dispute resolution processes. And the result is often a... Continue Reading →

Mediator Neutrality: An “I believe . . . ” Test

By Donald L. Swanson A mediator is, by definition, a "neutral." Neutrality seems to be a straight-forward concept: it means not-taking-sides. But not-taking-sides is, apparently, not all that simple. Check out this excellent article and this fine series of essays on the subject. Efforts to define or explain "neutrality" often get bogged down. Sometimes, new... Continue Reading →

Blog at WordPress.com.

Up ↑

%d bloggers like this: