The Problem of Representing a Small-Player in a Multi-Party Mediation

By: Donald L. Swanson Have you ever been in a multi-party mediation representing a small-player in the dispute. I don’t mean your party is “small”: I mean that your party’s position in the over-all dispute (while extremely important to the client) is viewed by others as a lower-tier issue. I have. And it’s a difficult situation:... Continue Reading →

Articulating an Opponent’s View, With Accountability: An Important Study for Mediators

By: Donald L. Swanson Immeasurable harm has resulted from an inability to appreciate that opposing views can be reasonable and coherent. A major cause of such harm is this: partisans lose touch with the views of others and dismiss contrary perspectives as foolish or biased. These propositions are from the authors of a 2015 study [Fn.... Continue Reading →

Mediated Settlements Require Court Approval in Bankruptcy: Limits on “Standing” to Object

By Donald L. Swanson Mediated settlement agreements in bankruptcy are subject to approval by the bankruptcy court after notice to interested persons. [Fn. 1] A Recent Case An entity named “Empower” took aggressive action in a recent bankruptcy case to prevent approval of settlements and a plan, all of which arose from extensive negotiation and mediation... Continue Reading →

Two Mediation Tools: Bracketed Bargaining and Mediator’s Proposal

By: Donald L. Swanson Bracketed bargaining and a mediator’s proposal are useful and effective mediation tools. Each has its own role and function—which do not overlap. These two tools are examined in a 2015 empirical study titled, “Inside the Caucus: An Empirical Analysis of Mediation from Within” [Fn. 1]. The study is based on 400 employment... Continue Reading →

“Best Practices” for Preparing a Pre-Mediation Statement

By: Donald L Swanson “When writing a mediation statement . . . lawyers fly blind. Large providers . . . offer little substantive guidance . . . Mediators themselves often fail to give explicit instructions . . . Most [law] schools rarely, if ever, teach budding lawyers about this niche genre of legal writing.” Brian Farkas*... Continue Reading →

How to Get Sanctioned for Failure to Attend Mediation: Two Recent Examples

By: Donald L. Swanson Sanctions for misconduct in a lawsuit are, actually, rare. It takes some doing to get sanctioned. Here are two Federal Court cases where failures to attend mediation incur the sanctions wrath of the courts.  Sanctions in the first case total $41,712.83, while sanctions in the second case are only $1,357.46. The forty thousand... Continue Reading →

How a Mediator’s Failure to Disclose a Prior Mediation Creates Problems

By: Donald L. Swanson Mediators are always concerned about conflicts of interest and appearances of conflict—and of making sure pertinent details are disclosed before accepting a mediation engagement. It’s not very often that things work the other way: that a mediator must disclose a mediation before accepting another professional engagement. But here’s a July 2018 appellate... Continue Reading →

The “Nature of a Dispute”: It’s Impact on Success or Failure of Mediation

By Donald L. Swanson The nature of a dispute “will have a significant impact on the success or failure of a mediation attempt,” and “unfavorable dispute characteristics are likely to defeat even the most adroit mediators.” Profs. Jacob Bercovitch and Jeffrey Langley, University of Canterbury, in The Nature of the Dispute and the Effectiveness of International... Continue Reading →

Was the Mediator Blind to Collusion During Mediation, Or Part of It?

By Donald L. Swanson “objectors essentially suggest that [the mediator] was too blind to see collusion at the tip of his nose during the mediation, or that [he] was part of the collusion. The court rejects these insulting, baseless arguments.” Speaks v. U.S. Tobacco Cooperative, Inc., 324 F.R.D. 112, 140 (E.D.N.C. 2018). The Facts On October... Continue Reading →

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