Mediation: Persisting Despite Early Failures (Kellogg v. Progressive)

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 →

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 →

Bad Automatic Stay Form & Violating the Spirit Of A Mediation Order (In re Nilhan)

Bad form: Angus cattle on a road at dusk! (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is dated November 9, 2020, and appears in the jointly administered cases of In re Nilhan Developers, LLC, Case No. 15-58443 (Northern Georgia Bankruptcy Court) (Doc. 206), and In re Bay Circle Properties, LLC, Case No. 15-58440... 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 →

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 →

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 →

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 →

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