Was the Mediator Blind to Collusion During Mediation, Or Part of It?

By Donald L. Swanson “objectors essentially suggest that [the mediator] was too blind to see collusion at the tip of his nose during the mediation, or that [he] was part of the collusion. The court rejects these insulting, baseless arguments.” Speaks v. U.S. Tobacco Cooperative, Inc., 324 F.R.D. 112, 140 (E.D.N.C. 2018). The Facts On October... Continue Reading →

Optimum Timing for Mediation: Early . . . but Not Too Early

By: Donald L. Swanson Mediation should occur "at some reasonable point,” (i) “before discovery is completed,” and (ii) after “critical motions have been decided.” --Suzanne J. Schmitz, A Critique of the Illinois Circuit Rules Concerning Court-Ordered Mediation, 36 Loy. U. Chi. L. J. 783 (2005). Early Mediation Referral Law Professor Suzanne J. Schmitz says that mediation... Continue Reading →

A False Assumption: Some Types of Cases are “Not Amenable” to Mediation

By: Donald L. Swanson The U.S. Sixth Circuit “moved to random selection” of cases for mediation because “cases that appeared to be amenable to mediation were not actually more likely to settle than any other case.” Sixth Circuit Appellate Blog, April 6, 2012. A False Assumption One of the early assumptions about mediation is that some... Continue Reading →

Mediation Confidentiality: Limits on Waiving It

Competing and Turbulent InterestsBy Donald L. Swanson The case is In re Anonymous, 283 F.3d 627 (4th Cir. 2002).  It’s an attorney discipline action over breaches of mediation confidentiality in an arbitration.  The dispute in arbitration is between an attorney and his former client over litigation expenses.  This dispute arose after the attorney and client concluded... Continue Reading →

How a Judge Makes Mediation Work: Judicial Oversight in Bankruptcy

By Donald L. Swanson “Even if a plan emerged out of mediation that unfairly discriminated against financial creditors, it’s the court’s responsibility to block the deal.” -- Judge Steven Rhodes, as reported by Nathan Bomey in “Detroit Resurrected: to Bankruptcy and Back.” Judge Rhodes is defending his mediators in the City of Detroit bankruptcy against... Continue Reading →

“I’m Not Comfortable With Requiring Mediation” = Unfounded Squeamishness

By: Donald L Swanson “Any district court that elects to require the use of . . . alternative dispute resolution in certain cases may do so . . . with respect to mediation.” Alternative Dispute Resolution Act of 1998 (28 U.S.C. § 652(a)). “I don’t feel comfortable requiring parties to mediate.” Ubiquitous sentiment among judges. I... Continue Reading →

Mediation and Early Neutral Evaluation in Consumer Disputes — England, Wales And ABI Consumer Commission

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." Low Value Cases and Litigants Without Means One focus of... Continue Reading →

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 →

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