Creativity in Mediation: An Important Role

By: Donald L. Swanson Here are a couple assumptions: Mediation is a creative process: it allows parties to think outside the box, discuss underlying issues, and customize a creative resolution. Adjudication, by contrast, is not: it resolves specific issues identified in pleadings. A Study A study titled “Creativity in Court-Connected Mediation: Myth or Reality?” [Fn. 1]... Continue Reading →

A Mediator/Arbitrator Malpractice Lawsuit: Haven’t Seen This Before!

By: Donald L. Swanson This doesn’t happen every day: A mediator’s engagement agreement authorizes the mediator to arbitrate disputes about any settlement agreement the parties might reach in mediation; The mediation achieves a settlement agreement, but a dispute arises over an alleged mistake in the agreement document; and The mediator attempts to arbitrate the dispute and... Continue Reading →

A Party’s Obligation to Pay a Mediator’s Fee is Enforced

By Donald L. Swanson On May 28, 2019, a U.S. District Judge issued an Order insisting that the Defendant pay mediator fees of $1,850.00 for a cancelled mediation. The case is Linares v. Suarez, in the U.S. District Court for Florida’s Middle District (Case No. 8:18-cv-985). Facts Here’s what happened. --Mediation Scheduled. Linares sued Suarez for... Continue Reading →

Must Mediators of Disputes in Litigation be Lawyers?

By: Donald L. Swanson Many mediators, in a variety of contexts, are not lawyers. In the mediation of lawsuit disputes, however, lawyers predominate. And that makes practical sense—especially in complex cases. But in lawsuits, even complex ones, the mediator is not required to be an attorney. At least, that’s the opinion of the Attorney General for... Continue Reading →

Studies on Rejection v. Choice Decisions: Implications for Mediators?

By: Donald L. Swanson Making an affirmative choice among alternatives is one way to make a decision. Rejecting an alternative is another way. Research Results Research shows that these two differing ways of making decisions often produce differing results. That’s because people “adopt different selection criteria” and “allocate different weights and choices” in these two ways... Continue Reading →

Studies Show that Humility and Pursuit of Virtue Lead to Wisdom in Resolving Conflicts: Implications for Mediation?

By Donald L. Swanson “Soloman’s Paradox” = “we tend to reason more wisely about other people’s problems than our very own” (aka, “Plenty of wisdom for others; but not for oneself”). [Fn. 1] “King Solomon, the third leader of the Jewish Kingdom, is thought of as a sage and a man of great wisdom. People traveled... Continue Reading →

What Is Professional “Bad Faith” In Mediation?

By: Donald L Swanson What is professional “bad faith” in mediation? I’m not talking, here, about sanctionable conduct. I’m talking, instead, about things like professional courtesy and civility—a standard of behavior that one professional owes to another to make the professional system work efficiently and effectively. The following are two hypothetical examples of mediation strategies and... Continue Reading →

A Study on Delegating Responsibility for Important Decisions: Application to Mediation?

By: Donald L. Swanson Consumers often delegate the responsibility for making difficult decisions to others. This is the finding of a recent study by two college professors [Fn. 1]. Avoiding Regret v. Avoiding Disappointment The study distinguishes between a consumer’s desire to avoid “regret” and to avoid “disappointment.” While both regret and disappointment “capture a person’s... Continue Reading →

“Can’t Get No Satisfaction” From, (i) Late-In-A-Lawsuit Mediation, and (ii) Type of Mediator By: Donald L Swanson “Satisfaction” of parties to a mediation is difficult to describe, let alone measure. But a recent study published by the Harvard Negotiation Law Review [Fn. 1] examines the “satisfaction” of mediating parties.  It identifies two items that have a significant effect on a party's “satisfaction”: (i) timing of referral, and (ii)... Continue Reading →

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