What Happens When a Mediated Settlement Falls Apart? Some Not-Good Things (In re Blue Dog)

By:  Donald L. Swanson Have you ever wondered what happens when disputing parties reach a mediated settlement agreement that requires further documentation—and then the settlement falls apart? What actually happens is often not-good. Here is an actual example, from a bankruptcy case, of what happens. The opinion is Blue Dog at #99 Inc. v. BP... Continue Reading →

“Vital” Role of Mediator: Tony Blair and the Northern Ireland Peace Process

By Donald L. Swanson “The conflict won’t be resolved by the parties if left to themselves. If it were possible for them to resolve it on their own, they would have done so. Ergo, they need outside help.” Tony Blair, A Journey: My Political Life, 189, Alfred A. Knopf, 2010 Chapter 6 of Tony Blair’s memoir... Continue Reading →

Pros and Cons for Mandated Mediation: From Civil Justice Council for England and Wales

By:  Donald L. Swanson England and Wales have a Civil Justice Council that, in 2016, formed an ADR Working Group to “review the ways in which” mediation is “encouraged and positioned within the civil justice system.” In October 2017, the Working Group issued its “Interim Report.” The Interim Report evaluates pros and cons of mandating... Continue Reading →

A Misguided Notion: Mediation is Entirely-Voluntary and Should Not Be Mandated

By: Donald L. Swanson Mandatory mediation works.  It results in case settlements.  And it helps creates a culture for voluntary mediation. But the idea of a mandated mediation is repugnant to some because it violates a "voluntary" ideal.  This is unfortunate.  Evaluating Mediation The ultimate goal of all civil litigation is this: to resolve disputes under... Continue Reading →

Random Selection of Cases for Mandatory Mediation = A “Spectacular Success” in the U.S. Circuit Courts of Appeals

By: Donald L. Swanson Back in the 1970s, Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals established an experimental mediation program called Civil Appeals Management Plan (“CAMP”) to deal with burgeoning caseloads. 1970s One CAMP feature, implemented for experiment and testing purposes, is the random selection of cases for mandatory mediation. ... Continue Reading →

Alternative Dispute Resolution Act of 1998: A Twenty-Year Anniversary and Impressive Results

By:  Donald L. Swanson 2018 marks the twenty-year anniversary of the Alternative Dispute Resolution Act of 1998 [codified at 28 U.S.C. § 651 et seq., the "ADR Act"]. Preamble The preamble to the ADR Act contains these findings on mediation: --“mediation . . . may have potential to reduce the large backlog of cases now... Continue Reading →

The “Estate Neutral” as an Expert Witness, a Mediator and a Financial Advisor

By: Donald L Swanson When ABI’s Commission to Study the Reform of Chapter 11 issued its Final Report in 2014, one creative approach it recommended is to authorize a new bankruptcy position: the "estate neutral." The Final Report says that chapter 11 "needs to offer tools to resolve a debtor’s financial distress." The estate neutral would... Continue Reading →

Creative Mediation System in British Columbia: A Model For Us All

By:  Donald L. Swanson “We have been much struck by the system operated in British Columbia whereby a party can issue a notice to their opponent in a specified form requiring mediation.” “[T]he establishment” of such a system “has led to the growth of informally agreed mediation as a norm” with the formal procedure “only... Continue Reading →

Evolutionary Progress of Mediation is Upward: Toward Greater, Earlier and Mandatory Use

By: Donald L. Swanson “Perhaps no idea has proven more controversial within evolutionary biology than the idea that evolution manifests progress.” --T. Shanahan (7/16/2012) The track-on-a-graph for mediation progress is, without question or controversy, upward! The formal and frequent use of mediation to resolve lawsuits in the U.S. dates back to experimental programs of the... Continue Reading →

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