A Recommendation for Mandating Mediation in England and Wales

By: Donald L. Swanson The voluntary mediation scheme “does remain under-used.” --October 2017 Interim Report on Mediation in England and Wales England’s Civil Justice Council is an Advisory Body established under the “Civil Procedure Act 1997” to oversee and co-ordinate “the modernization of the civil justice system.” On January 28, 2016, the Council formed a Working... Continue Reading →

An Example of Mediation Success in Hostile and Difficult Circumstances (City of San Bernardino Bankruptcy)

By Donald L. Swanson Timeline for a Plan Confirmation Dispute November 11:  Creditor requests an order requiring mediation November 14 (a.m.):  Debtor objects to request for mediation order November 14 (p.m.):  Court orders mediation December 6:  Debtor and creditor reach a settlement agreement February 7:  Debtor’s bankruptcy plan is confirmed This timeline is from a... Continue Reading →

A Futile Attempt at Ignoring Mediation Obligations

By:  Donald L. Swanson There’s a lawsuit now in progress in a Florida Federal Court over a local pub. The Pub Dispute Plaintiff claims to be "a franchisor” of “establishments” that sell “imported and domestic beers” and other products used in “a distinctive pub environment.” Plaintiff also claims to have “methods and procedures—a system—” that... Continue Reading →

Mediating Parties on Their Mediators: Handing Out Reviews

By:  Donald L. Swanson What do mediating parties say about their mediators? That’s what Prof. Stephen B. Goldberg and Margaret L. Shaw wanted to know. So, they do a study and report on it back in 2008, as follow-up to a prior study.  And the mediating parties are more-than-happy to hand out reviews. Prior Study... Continue Reading →

Private Mediators: A Solution to Budget Pressures on Circuit Court Mediation Programs

By: Donald L. Swanson The U.S. Circuit Courts of Appeals have, for many years, administered their own mediation programs for civil cases.  The administrators and mediators in such programs are, typically, Federal employees. Such mediation programs are also characterized, typically, by the following: --mandatory referral of cases to mediation with no-extra-charge for mediator services --mediation... Continue Reading →

Thirty Experienced Mediators Reveal the Secrets of Their Success

By:  Donald L. Swanson Prof. Stephen G. Goldberg surveyed 30 experienced and successful mediators: 28 had mediated at “least 100 disputes,” and 2 had mediated “more than 50 but less than 100.” He wanted to know “how they accounted for their successes.” Prof. Goldberg reports his survey findings in, “Mediators Reveal Their Essential Techniques for... Continue Reading →

Mediator vs. Early Neutral Evaluator: A Confusion of Roles

By Donald L. Swanson Examples of “an alternative dispute resolution process” include, “early neutral evaluation, mediation, minitrial, and arbitration.” --28 U.S.C. § 651(a) (from the Alternative Dispute Resolution Act of 1998). Over time, the word “mediation” has come to be a shorthand term encompassing all non-binding alternative dispute resolution processes. And the result is often a... Continue Reading →

“Hallway Mediation” for Multi-Party Disputes that are Stuck and Going Nowhere

"Hallway Mediation" is this: Putting multi-party disputants into a room to talk about their disputes, with the mediator orchestrating (or maybe it's refereeing) the event. I call it "Hallway Mediation" because that's where I first saw it happen and learned to do it: in the hallways outside the Bankruptcy Courtrooms in Omaha, Lincoln and North... Continue Reading →

Micromanaging the Mediation Process

  By: Donald L. Swanson In the case of In re Sabine Oil & Gas Corp., Case No. 15-11835 (Bankry. S.D.N.Y.), the bankruptcy judge authorizes and terminates two separate mediation efforts by the following orders: --January 5, 2016 – “Order Selecting Mediator and Governing Mediation Procedures” (Doc. 669). --May 2, 2016 – “Order Terminating STN... Continue Reading →

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