“Progress” As “Success” In Mediation: The Subchapter V Experience, & A Study

Making progress with each step (photo by Marilyn Swanson) By: Donald L Swanson Very positive.  That’s the experience in Subchapter V so far, with the “facilitate” role of a trustee in achieving consensual or uncontested plan confirmations.  What the Subchapter V experience demonstrates is this: early involvement of an independent person, focused on achieving a consensual... Continue Reading →

Delayed Decisions = A Perception Of Doubt (Implications For Mediation?)

By: Donald L Swanson A 2014 study looks at how people make judgments, based on the time it takes others to reach a decision. [Fn. 1] The central finding of the study is this: Long decision times are viewed as evidence of the decision maker’s doubt; andOthers make decisions based on the degree of doubt perceived.... Continue Reading →

The Role of “Trust” in Mediation

By: Donald L Swanson Once a negative impression is formed about an individual, there is a tendency to view everything else about this person in negative terms. [Fn. 1] A Loss-of-“Trust” Story I remember mediating a commercial dispute, many years ago, between two parties: let’s call them Party A and Party B. One of the disputed... Continue Reading →

Friendliness Within Hostile Relationships–A Barrier to Negotiation?

A friendly fox? (Photo by Marilyn Swanson) By: Donald L Swanson A study of social behavior is titled, “Barriers to Transforming Hostile Relations: Why Friendly Gestures Can Backfire.”  [Fn. 1] The findings and implications of this study are significant for mediation and other negotiation contexts! Background & Essential Finding Everyone knows that friendliness builds rapport and... Continue Reading →

Mediating With Department Of Justice Of The U.S. Government: A Study

U.S. Government (photo by Marilyn Swanson) By: Donald L Swanson We are focusing, here, on a mediation study titled, “Dispute Resolution and the Vanishing Trial: Comparing Federal Government Litigation and ADR Outcomes” (the "Vanishing Trial Study"). [Fn. 1] Some History & A Hypothesis A 2006 publication titled, “A World Without Trials,” documents a decline in the... Continue Reading →

The ADR Spectrum: Subchapter V Adds A New / Unique ADR Role

The ADR Spectrum By: Donald L Swanson Alternative dispute resolution (“ADR”) has always referred to the use of a neutral third party to help resolve disputes.  But the recent addition of Subchapter V to the Bankruptcy Code has changed that.  I’ll try to explain. Alternative Dispute Resolution Act of 1998 28 U.S.C. § 651(a) is part... Continue Reading →

Informal Mediation for Small Businesses in Financial Stress

By: Donald L. Swanson Pre-litigation mediation opportunities are provided in many farm states before a creditor can pursue legal action against a farmer on a delinquent obligation.  Such early mediation efforts are highly effective in resolving disputes. Similarly, small businesses in financial stress and their creditors might engage in early efforts to forestall credit disputes. ... Continue Reading →

Judge Kornreich: On Judicial Mediators And Private Mediators (An Interview)

https://youtu.be/ysWRt4_-6uk By: Donald L Swanson The above interview talks about mediators in general and about judicial mediators (i.e., a sitting judges) and private mediators more specifically; and it offers suggestions for practitioners on choosing a mediator. Hon. Louis H. Kornreich (Ret.) is well-qualified to speak on such matters because of his, (i) long and distinguished service... Continue Reading →

Study: Early Referrals To Mediation, With Opt-Out for Good Cause, Are Effective

A courthouse (photo by Marilyn Swanson) By: Donald L Swanson When an opt-out for good cause exists, early referral of a case to mediation facilitates settlement. --This conclusion is from a “large sample” study of mediations involving the federal government as party defendant. The “large sample” study is reported as, “Dispute Resolution and the Vanishing Trial:... Continue Reading →

Hellenic Union of Mediators — Doing Excellent Work!

"Welcome to the website of the HELLENIC UNION OF MEDIATORS" (translation of first line in this photo) By: Donald L Swanson There are many people, around the world, doing excellent work in promoting the use of mediation as a dispute resolution tool. One such organization is the Hellenic Union of Mediators, located in Athens, Greece (the... Continue Reading →

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