How To Mandate A Voluntary Mediation System That Thrives: A Minnesota Example

By Donald L. Swanson Back in 1994, Minnesota state courts adopt a "mandatory consideration" rule for alternative dispute resolution ("ADR") possibilities. The rule works, back then, like this: Attorneys are required to, (i) consider using ADR in every civil case, (ii) discuss ADR with their client(s) and opposing counsel, and (iii) advise the court of their... Continue Reading →

Mediation in New Zealand — A Study on How It’s Done

By: Donald L. Swanson Sometimes it’s helpful, in understanding our own situation, to look at someone else’s. Mediation is a common tool for resolving commercial disputes in New Zealand.  A 2017 study of mediation in New Zealand reveals how it's done there: “From Anecdote to Evidence: The New Zealand Commercial Mediation Market [Fn. 1]. General Findings... Continue Reading →

Are Emotional Arguments Helpful or Harmful in Mediating Commercial Disputes?

By: Donald L Swanson Settlement = Assessment of Risks + Math I made up this unsophisticated formula decades ago to explain what happens when a negotiated settlement occurs in a commercial dispute. What I’ve found, since then, is that the formula holds true in the vast majority of cases—even when emotions and tempers are on edge.... Continue Reading →

Caucus Inadequacy and the Joint Session Solution for Multi-Party Mediations

  By: Donald L Swanson Let’s say that a mediation among four parties or more is a “multi-party” mediation. Caucus Inadequacy Here’s how a caucus format works—inadequately—in a mediation among four parties: the mediation starts at 9:00 a.m. with a half-hour joint session to set the rules and format, whereupon, the parties split into sequestered conference... Continue Reading →

Is an Assault Committed During Mediation Protected by Confidentiality?

By: Donald L Swanson Confidentiality is a central tenet of mediation. Without it, mediation cannot function effectively. So, statutes and court rules provide for high levels of confidentiality in the mediation process. But what about an assault occurring within the mediation process? Can a mediator testify about the assault? And what if the assault is directed... Continue Reading →

Empirical Studies and the Mediator’s Proposal — A Portal to Decision

By: Donald L. Swanson Let’s try combining a couple empirical studies on unrelated matters to support the following proposition: --The “mediator’s proposal,” as a form of choice delegation, can help parties reach settlement.  The proposal becomes a portal or entryway to decision. First Study: Delegating Difficult Choices The first study is titled, “Delegating Decisions: Recruiting Others... Continue Reading →

The Problem of Caucus in Mediating Business Disputes

By: Donald L Swanson “The Mediator is a nice guy, but he needed to pound harder on the other side.” —A disappointed litigator on why a mediation did not achieve settlement. This quote is a common post-mediation refrain. A Fundamental Error The quote contains a fundamental error. The error is this assumption: it is the mediator’s... Continue Reading →

Nothing is Permanent: Mediation of International Commercial Disputes

By: Donald L Swanson HISTORY: “Prior to World War II, most international commercial disputes were resolved through consensual procedures such as mediation”—mediation was viewed by many as “an inclusive and effective cross-cultural approach to problem solving.” RECENT TIMES: Mediation is infrequently used in international commercial disputes—mediation is viewed by many as “a futile and potentially expensive... Continue Reading →

Striking the Answer and Entering Default: A Sanction for Blowing Off Mediation

By: Donald L. Swanson The case is Trujillo v. Tak (In re Tak), Case No. 18-ap-01217 (Bankry. C.D. Cal.). The Case Celia Trujillo sues Debtor in Superior Court of the State of California, County of Los Angeles, at Case No. BC672613, for sexual harassment and discrimination. In response, Debtor files Chapter 7 bankruptcy. Then, Celia Trujillo... Continue Reading →

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