Persisting through early failures (photo by Marilyn Swanson) By: Donald L. Swanson “Failure” in a mediation is difficult to define.  For hypothetical examples: Is it a “failure” when a lawsuit fails to settle in a mediation session?Is it a “failure” when a lawsuit fails to settle in a second mediation session?Is it a “failure” when, (i)... Continue Reading →

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 →

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 →

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 →

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 →

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 →

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 →

Theory (i.e., mediator neutrality and party self-determination) gives way to the practical need for achieving a settlement.

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 →