A Mediation Innovation in Italy that Works! Middle Ground between Voluntary and Mandatory

By: Donald L. Swanson “Millions of dollars and Euros” have been spent “on projects and awareness campaigns” to promote the use of mediation. “With few exceptions. . . this approach failed.” Leonardo D’Urso, April 2018 In recent years, Italy introduced a new and highly-successful mediation program. It’s success is described in this article by Leonardo D’Urso:... Continue Reading →

Let’s Add a Mandatory Element to Mediation Programs: A Small Claims Illustration

By: Donald L. Swanson Voluntary mediation programs “attract relatively few cases, even when offered at low or no cost.” --Dr. Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 Willamette Law Review 565 (1997). An Empirical Study Dr. Wissler’s empirical comparison of voluntary v.... Continue Reading →

Authority for Mediation Mandates

By: Donald L. Swanson “Where does a bankruptcy judge get authority to order parties into mediation?” —Question at a discussion of bankruptcy mediation. This question comes from a skeptic. And it has little to do with the topic under discussion.  So, the others in the discussion hem and haw.  One finally says, “Section 105.” The questioner then... Continue Reading →

Pros and Cons for Mandated Mediation: From Civil Justice Council for England and Wales

By:  Donald L. Swanson England and Wales have a Civil Justice Council that, in 2016, formed an ADR Working Group to “review the ways in which” mediation is “encouraged and positioned within the civil justice system.” In October 2017, the Working Group issued its “Interim Report.” The Interim Report evaluates pros and cons of mandating... Continue Reading →

A Misguided Notion: Mediation is Entirely-Voluntary and Should Not Be Mandated

By: Donald L. Swanson Mandatory mediation works.  It results in case settlements.  And it helps creates a culture for voluntary mediation. But the idea of a mandated mediation is repugnant to some because it violates a "voluntary" ideal.  This is unfortunate.  Evaluating Mediation The ultimate goal of all civil litigation is this: to resolve disputes under... Continue Reading →

Random Selection of Cases for Mandatory Mediation = A “Spectacular Success” in the U.S. Circuit Courts of Appeals

By: Donald L. Swanson Back in the 1970s, Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals established an experimental mediation program called Civil Appeals Management Plan (“CAMP”) to deal with burgeoning caseloads. 1970s One CAMP feature, implemented for experiment and testing purposes, is the random selection of cases for mandatory mediation. ... Continue Reading →

Creative Mediation System in British Columbia: A Model For Us All

By:  Donald L. Swanson “We have been much struck by the system operated in British Columbia whereby a party can issue a notice to their opponent in a specified form requiring mediation.” “[T]he establishment” of such a system “has led to the growth of informally agreed mediation as a norm” with the formal procedure “only... Continue Reading →

Evolutionary Progress of Mediation is Upward: Toward Greater, Earlier and Mandatory Use

By: Donald L. Swanson “Perhaps no idea has proven more controversial within evolutionary biology than the idea that evolution manifests progress.” --T. Shanahan (7/16/2012) The track-on-a-graph for mediation progress is, without question or controversy, upward! The formal and frequent use of mediation to resolve lawsuits in the U.S. dates back to experimental programs of the... Continue Reading →

Setting Interim and Ultimate Goals for a Mediation Effort

By Donald L. Swanson “the Court finds that mediation may be an efficient and effective mechanism . . . to consensually resolve or narrow the objections to the plan.” --Hon. Stuart M. Bernstein, U.S. Bankruptcy Judge, Southern District of New York, in Avaya Inc. mediation referral Order dated 9/13/2017 (emphasis added). We can all take a... Continue Reading →

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