Reflecting Feelings and Interests — A Mediation Study

By Donald L. Swanson A 2016 report on a mediation study looks at how a mediator reacts with participants.  Specifically, the study evaluates what happens when a mediator: --reflects back to participants what the participants themselves express --focuses on a participant's feelings/emotions --focuses on a participant's underlying interests. Findings When a mediator does such things, participants... Continue Reading →

Special Settlement Problems When Defendant Claims Poverty or Non-Collectibility

By: Donald L. Swanson “I’d be happy to pay the million dollars I owe you. The problem is that I have only two of them.” --A defendant’s claim of poverty and non-collectibility in settlement negotiations. A defendant's poverty/non-collectibility claim creates an interesting dynamic in mediation and other negotiations. And that’s true whether the defendant is an... 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 →

Varying Ways to Succeed as a Mediator

By:  Donald L. Swanson We “sought to determine whether the reasons for mediator success are the same for all successful mediators, or whether different mediators succeed for different reasons.” Prof. Stephen B. Goldberg and Margaret L. Shaw in a 2008 report titled, “The Secrets of Successful (and Unsuccessful) Mediators.” The study: In their study, Prof.... Continue Reading →

Contingent Fees or Success Fees for Mediators: Why Not?

By: Donald L. Swanson I have a new LinkedIn friend, Mark Winters from the U.K., who’s developed a mediation practice within an unusual context. And he’s making it work. Since the practice arose from his own creativity and out of unusual circumstances, he’s unbounded by common norms and can do creative things. One creativity is this:... Continue Reading →

2017 ABA Report on Research of Mediation Techniques — and the Need for Research on Bankruptcy Mediation

By Donald L. Swanson On June 12, 2017, the American Bar Association’s Section of Dispute Resolution published its “Report of the Task Force on Research on Mediator Techniques.” Notably, this report makes no reference to any research on bankruptcy mediation — not even a single study. The following article consists of four parts: --Summary of the... Continue Reading →

How to Fail as a Mediator

By:  Donald L. Swanson We explore “the ways in which” unsuccessful mediators “failed to satisfy” the expectations of their mediating parties. Prof. Stephen B. Goldberg and Margaret L. Shaw in a 2008 report titled, “The Secrets of Successful (and Unsuccessful) Mediators.” In the “unsuccessful mediators” portion of their study, Prof. Goldberg and Ms. Shaw follow-up... Continue Reading →

Gotta Trust the Mediation Process

By: Donald L. Swanson If there’s anything the history of mediation tells us, it’s this: --We’ve gotta trust the process. Here’s an example, that’s happening right now, of how a failure to trust the mediation process creates issues: In re Las Cruces Country Club, Inc., Case Nos. 16-12947 & 16-12947-j7 (Bankry., D. New Mexico) (the debtor... Continue Reading →

Ignorance of Mediation Program Availability “Is Not Bliss”: A New Empirical Study

By: Donald L Swanson Voluntary mediation programs are often underutilized. This is an undeniable problem. One source of the problem is ignorance of mediation’s availability. We now have empirical proof that this is so. Ignorance is Not Bliss Prof. Donna Shestowsky [Footnote 1] conducted an empirical study titled, “When Ignorance is Not Bliss” [Footnote 2].  Her... Continue Reading →

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