On Bankruptcy and Mediation
Reflecting (photo by Marilyn Swanson) By: Donald L Swanson A study titled, “What Works,” examines the effects of mediator strategies and behaviors on case outcomes in small claims cases. [Fn. 1] The study gathers information on both the short term (immediately after the mediation occurs) and long term (up to twelve months later) effects of mediator... Continue Reading →
A Caucus? (photo by Marilyn Swanson) By: Donald L Swanson A study [fn. 1] of mediations in small claims cases reaches this conclusion: The over-use of a caucus format is bad for mediation. Findings Specific findings supporting such conclusion include the following.[Fn. 2] In a small claims mediation, a greater percentage of time spent in caucus:... Continue Reading →
By: Donald L Swanson Every now and then we get a picture of actions in mediation that result in sanctions. Studying such a picture can be helpful to us all—by illustrating the types of actions to be avoided. Here is one such picture from the legal opinion of Vittiglio v. Vittiglio, 297 Mic.App. 391, 824 N.W.2d... Continue Reading →
In-Person (Photo by Marilyn Swanson) By: Donald L. Swanson Mediators prefer Online Dispute Resolution to In-Person Mediation, in mediations conducted by the U.S. Equal Employment Opportunity Commission (“EEOC”). That’s the finding from a study of mediators who served in the mediation program conducted by the U.S. Equal Employment Opportunity Commission (“EEOC”). The report of the... Continue Reading →
In-Person (Photo by Marilyn Swanson) By: Donald L. Swanson “Nearly 70% of the participants prefer Online Dispute Resolution [e.g., via Zoom] to In-Person Mediation . . . Only 13% preferred In-Person Mediation in the future.” That’s the finding from a study of party-participants in the mediation program conducted by the U.S. Equal Employment Opportunity Commission... Continue Reading →
Transforming (photo by Marilyn Swanson) By Donald L. Swanson A study report on mediators is, “Becoming the change we wish to see: The unexpected benefits of conflict resolution work,” by Susan Raines, published January 2018 in Conflict Resolution Quarterly, at 319-327. The author begins the study report like this: “Gather any group of mediators, ombuds, relief... Continue Reading →
Direct discussions! By: Donald L. Swanson Allowing direct discussions between parties, when mediating a commercial case, can be an intimidating—and tricky—proposition. But it is effective when allowed . . . despite obvious concerns. Here are four concerns, about direct discussions between mediating parties, based on four goals of mediation: The first goal is to assure... Continue Reading →
A great idea (photo by Marilyn Swanson) By Donald L. Swanson “Mandatory mediation” is a self-explanatory term. It means this: --A court (or a mediator with authority from the court) orders disputing parties to participate in a mediation process. There seems to be a reticence in the bankruptcy world, generally, toward mandatory mediation. I'm not... Continue Reading →
By Donald L. Swanson There is a “need for mediation experts” and “some form of a mediation group in law firms, especially larger practices.” Dennis Klein, “The Case For Creating A Mediation Department At Your Firm,” Law360, 11/14/2017 [Footnote 1] In the article linked above, Mr. Klein says that most law firms “tout mediation experience” and... Continue Reading →
By Donald L. Swanson Attorneys make mistakes. It happens. Here’s a case where two competing attorneys each violate a court rule on mediation confidentiality: In re Anonymous, 283 F.3d 627 (4th Cir. 2002). The hand-slap The two attorneys get hauled before the Court to explain their dastardly deeds. But in the end, they only get... Continue Reading →
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