Litigious People Are Going to Litigate—And Mediation Can’t Change That Fact (In re Butko)

Stubborn persistence (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Butko, Case No. 20-21255 in the Western Pennsylvania Bankruptcy Court (decided 2/10/2021, Doc. 91). Litigious Parties The parties have been at it for awhile.  You know the history is bad, when a Court opinion begins its “Background” explanation like this: “In... Continue Reading →

Perils Of Mediating / Settling With Less Than All Defendants (Kennedy v. Alliance)

Include them all? (photo by Marilyn Swanson) By: Donald L Swanson Settling with less than all defendants in a lawsuit is always tricky. And mediating without all interested parties involved is also tricky. The problem is that non-settling / non-participating parties might, (i) blow a settlement up, once they learn of it, (ii) be released unintentionally... Continue Reading →

Study: Advice Giving And Power Motivation

Power generation (photo by Marilyn Swanson) By: Donald L. Swanson “the desire to feel powerful motivates advice giving” That’s the conclusion of a study titled “Advice Giving: A Subtle Pathway to Power” [fn. 1]. Is that a Negative? Hmmmm . . . somehow, that conclusion doesn’t sound like a compliment. I’m not sure what to think... Continue Reading →

Zoom Mediations And “Trust”: A Study

Trusting? (Photo by Marilyn Swanson) By: Donald L Swanson A 2019 study [Fn. 1] examines whether mediating parties will trust a mediator when the mediation occurs over Zoom (or similar platform), instead of in-person. Here are the study’s conclusions: all fifty-nine study participants "felt that they could trust the mediator and perceived the mediator as trustworthy”—whether... Continue Reading →

Enforcing Agreements To Mediate And To Arbitrate (Garcia v. ISS Facility)

Rules for overlapping activity (photo by Marilyn Swanson) By: Donald L Swanson Agreements to mediate and agreements to arbitrate are both enforceable and effective.  But how they are used together, when they overlap, can get tricky.  That’s illustrated by the case of Garcia v. ISS Facility Services, Inc., et al.  The case begins with a U.S.... Continue Reading →

How Mediation Helps Resolve the Unsolvable (In re Zimmer)

Unsolvable? (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Zimmer, Case No. 17-20543 in the Bankruptcy Court for the Western District of Pennsylvania (issued December 14, 2020, Doc. 452). The case is a mess—you’ve got to read it to believe it. Beginning Facts Daniel and Lucille Morris (the “Morris couple”) are... Continue Reading →

Promoting Honesty In Mediation By Face-To-Face Interactions (A Study)

Face-to-face interactions (photo by Marilyn Swanson) By: Donald L Swanson People are “more honest when communicating face-to-face than through an intermediary,” and that is true in “even the briefest of face-to-face interactions.” Study Such are the findings of a study titled, “I Can’t Lie to Your Face.” [Fn. 1] Face-to-face interactions in the study involve visual... Continue Reading →

“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 →

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