Mandatory v. Voluntary Mediations: Empirical Data from Pilot Programs

By: Donald L. Swanson We’ve all wondered, over the years, about the advisability and effectiveness of mandatory mediation. Turns out that mandatory and voluntary mediation programs can achieve about the same results when: --judges in a mandatory system accommodate participants who don't want to mediate, and --judges in the voluntary system encourage mediation. Empirical Data... Continue Reading →

A Study Of Four Mediator Strategies And Their Effects

Reflecting back on what works and what doesn’t (photo by Marilyn Swanson) By: Donald L Swanson A recent research project measures the effects (both short and long term) of four mediator strategies on party attitudes and outcomes. [Fn. 1] What follows is a summary of the project’s findings on these mediator strategies: Eliciting Participant Solutions;Neutral Offering... Continue Reading →

Study Finding: Self-Centeredness Is A Barrier to Effective Negotiation

Self-Centered? (photo by Marilyn Swanson) By: Donald L Swanson A study on “egocentrism” and “misunderstanding in conflict and Negotiation” is enlightening. [Fn. 1] “Egocentrism” is defined as an “excessive interest in oneself . . . at the expense of or in disregard of others.” Study Findings The study finds, in three separate experiments, that negotiating parties,... Continue Reading →

Judicial Mediator Serving As Deciding Judge In Same Case: An Overreach? (McAdams v. Robinson)

An overreach? (photo by Marilyn Swanson) By: Donald L Swanson “Mediating judges have largely slipped through the cracks of widespread academic discussion. . . . Yet, some practices create the perception or the reality of judicial overreach in ways that elude standard judicial accountability measures.” Prov. Melissa B. Jacoby, “Other Judge’s Cases,” at 68 (January 22,... Continue Reading →

Judges Mediating Other Judges’ Cases: A Report (Harder/Sunwest)

A report By: Donald L Swanson Here’s a first of its kind: a report about federal judges mediating other judges’ cases.  It's a January 22, 2022, report titled, Other Judges’ Cases, authored by Melissa B. Jacoby, Professor of Law, University of North Carolina at Chapel Hill—scheduled to publish in 72 NYU Annual Survey of American Law... Continue Reading →

Mediation Timing And Details: Adjusting To Unique Circumstances (In re Diocese of Buffalo)

Adjustments to unique circumstances? (Photo by Marilyn Swanson) By Donald L. Swanson The opinion is from In re The Diocese of Buffalo, N.Y., Case No. 20-10322, Western New York Bankruptcy Court (entered December 27, 2021, Doc. 1487). The Diocese of Buffalo asks the Bankruptcy Court to refer its Chapter 11 case and related adversary proceedings to... Continue Reading →

Mediation Order in Purdue Pharma Bankruptcy: Managing A Tension

Managing tension (photo by Marilyn Swanson) By: Donald L Swanson On January 3, 2022, Reuters reports, under the heading “Judge orders mediation for Purdue, Sacklers over opioid settlement,” as follows: A U.S. bankruptcy judge orders mediation in the Purdue Pharma bankruptcy [fn. 1], calling for the company, the Sackler family members that own it and nine... Continue Reading →

Deposing A Mediator About What Happened In The Mediation (Roberts v. City of Fairbanks)

Pursuing a strategy? (Photo by Marilyn Swanson) By: Donald L Swanson “There is no federal mediation privilege”;“the mediator's testimony about the mediation is not privileged”; and“there is no legal bar to Defendants seeking the [mediator’s testimony] with regard to the mediation and settlement negotiations.” --Roberts v. City of Fairbanks, Case No. 17-cv-00034, U.S. District Court of... Continue Reading →

Over-Estimating The Persuasive Value Of Electronic Communications

Face-to-face communications (photo by Marilyn Swanson) By: Donald L Swanson Electronic communications (e.g., emails and texts) fail to convey the non-verbal cues that are readily apparent in face-to-face communications.  That’s an unsurprising conclusion from a study titled, “Ask in person: You're less persuasive than you think over email.”  [Fn. 1] Dominant Email and text communications are... Continue Reading →

A Mediator’s Motto: “Never Give Up” — And Its Unexpected Benefits

Patience and perseverance are required (photo by Marilyn Swanson) By: Donald L Swanson A mediator’s motto must always be, “Never give up.”  At the beginning of any mediation, a mediator will hear, all the time and from all the parties, “No, never!” So, a mediator must ignore such statements and keep talking—exercising patience and perseverance .... Continue Reading →

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