Inertia in Decision Making: Implications for Mediation?

Inertia (photo by Marilyn Swanson) By: Donald L Swanson There is “a tendency for decision makers to choose a status quo option.” [Fn. 1] In many decision situations there is a status quo option, which may be the result of a previous choice or may simply be the option that ensues if no action is taken.... Continue Reading →

Succeeding at Small Claims Mediation: England and Wales Showing How It’s Done

England (photo by Marilyn Swanson) By: Donald L Swanson Small claims mediation efforts often languish. Many small claims parties don’t choose to use mediation—even when mediation is offered at a reduced fee or without charge. How can this be? It’s a mystery. Some small claims mediation efforts, by contrast, are successful. Here’s an example. High Volume... Continue Reading →

Japan’s Nuclear Disaster Fund, A U.S. Court, & Mediation (Imamura v. GE)

By: Donald L Swanson The opinion is Imamura v. General Electric Co., Case No. 19-1457 in the U.S. First Circuit Court of Appeals (issued April 24, 2020).  Facts In 2011, an earthquake-induced tsunami struck the Fukushima Daiichi Nuclear Power Plant in Japan, triggering explosions and a nuclear disaster, which destroyed property and livelihoods of residents in... Continue Reading →

Mediation Continuums: How They Overlap

By: Donald L. Swanson “Joint Session <———> Caucus Only” "Fact Disputes <———> Law Disputes"  A continuum? (Photo by Marilyn Swanson) These are two sets of mediation continuums. Here’s a theory I've heard on how the “joint session” to “caucus only” continuum and the "fact disputes" to "law disputes" continuum overlap in commercial cases.  I'd like to... Continue Reading →

The First-Ever Formal Mediation in Federal Court?

Judge Irving Kaufman By: Donald L. Swanson Judge Irving Kaufman is famous for many things, such as presiding over the Rosenberg espionage trial and rejecting the U.S. government’s attempt to deport John Lennon to the United Kingdom. But Judge Kaufman’s greatest legacy may be for his role in developing mediation as a primary dispute resolution... Continue Reading →

ADR Act of 1998: A Reflection on Its Effectiveness and Shortfalls

By: Donald L Swanson October 31, 2018, was the 20th anniversary of the Alternative Dispute Resolution Act of 1998 (the “ADR Act”). [Fn. 1] The ADR Act has had a profound impact on the practice of law throughout the federal court system. However, it also has shortfalls that are yet to be rectified. A Mediation Model:... Continue Reading →

A Survey of Professionals on Mediation of International Commercial Disputes

By Donald L. Swanson On December 20, 2018, the United Nations General Assembly adopted a United Nations Convention on International Settlement Agreements Resulting from Mediation, and 52 countries have signed that Convention.  It deals with enforcing mediated settlements of international commercial disputes. A Survey Leading up to adopting the Convention, studies were made to determine the... Continue Reading →

Zoom Mediation Works!

By: Donald L Swanson “All your assumptions on this are wrong.” --A visionary, back in 1999, on why video communications will work. Change It was nearly a decade ago, when I suggested participating in a mandated and far-away mediation by Skype. The Judge said, “No, because face-to-face communication is essential to mediation.” It was nearly a... Continue Reading →

Sanctionable v. Non-Sanctionable Misbehaviors in Mediation: Companion Cases from Eleventh Circuit

By: Donald L Swanson Parties and their attorneys can misbehave in mediation. It happens . . . not very often—but it does happen. Sometimes, the misbehaviors can result in sanctions—but most times, they do not. This article is about two companion opinions, issued by the same court (U.S. Eleventh Circuit Court of Appeals) and within a... Continue Reading →

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