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

https://m.youtube.com/watch?v=nrIPxlFzDi0 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 →

Assertive Mediator Techniques Produce More Agreements and Greater Satisfaction–A Mediation Study

By: Donald L. Swanson “we were surprised to find that mediators could use assertive strategies to obtain settlements without overly sacrificing disputant satisfaction with the mediation.” Friendly Persuasion in Civil Case Mediations, by James A. Wall & Suzanne Chan-Serafin, 31(3) Conflict Resolution Quarterly at 285-303 (2014). The “Friendly Persuasion” article is about a study that tests the... Continue Reading →

The Problem of Mediating While a Court Ruling is Imminent

By: Donald L. Swanson “[W]e are unaware of any authority suggesting that a district court may not rule on a pending motion for summary judgment while the parties may be attempting to settle the matter outside of court.” --Third Circuit Court of Appeals in Myrick v. Discover Bank, Case No. 16-1966, fn. 6 (10/7/2016). The... Continue Reading →

Mediating “One-Off Disputes” vs. “Relationship Disputes” — And the Significance of Settlor’s Remorse in Each

By: Donald L. Swanson Like snowflakes and fingerprints, no two mediations are alike. And the mediator, in any given dispute, must adjust to the peculiarities of the issues and parties at hand. Take, for example, differences between mediating what I’ll call “one-off disputes” vs. “relationship disputes” in business contexts. Definitions Let’s say, for discussion purposes, that:... Continue Reading →

Practicing Attorneys (Not Sitting Judges) Serving as Mediators: An Innovation from the 1970s

By: Donald L Swanson The use of practicing attorneys -- instead of sitting judges --  to serve as mediators is an early-innovation from Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals. This innovation occurs, back in the 1970s, amid “wide disagreement” about the effectiveness of attorneys as mediators. Back then, Judge... Continue Reading →

Mediator Hostility is Effective?!

By: Donald L. Swanson What follows is confusing and disorienting . . . and a little disturbing. A 2017 academic article has this title: “The Surprising Effectiveness of Hostile Mediators” [Fn. 1]. And it reaches this conclusion: “As in prior studies, negotiators were more willing to reach agreement after interacting with a hostile mediator than a... Continue Reading →

Optimum Time For Mediation: At Close Of Pleadings & Before Contested Motions Are Filed

By: Donald L Swanson Mediation in civil litigation, here in the States, typically occurs as discovery winds down and as a trial date is in the offing. And, typically, mediation happens at the initiative of the parties—not by court referral. That’s how it’s done. Singapore Study But there are other ways to do it. In Singapore,... Continue Reading →

How Mandated Mediation Works — Even When It Doesn’t

By: Donald L. Swanson The U.S. District Court for the Middle District of Florida has a mediation policy that’s mandatory. A dispute can be excused from mediation, however, “upon a determination” that it “is not suitable for mediation.” A recent case shows how the Middle District’s policy of mandated mediation offers more than one road to... Continue Reading →

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