Ignorance of Mediation Program Availability “Is Not Bliss”: A New Empirical Study

By: Donald L Swanson Voluntary mediation programs are often underutilized. This is an undeniable problem. One source of the problem is ignorance of mediation’s availability. We now have empirical proof that this is so. Ignorance is Not Bliss Prof. Donna Shestowsky [Footnote 1] conducted an empirical study titled, “When Ignorance is Not Bliss” [Footnote 2].  Her... Continue Reading →

A Mediation Innovation in Italy that Works! Middle Ground between Voluntary and Mandatory

By: Donald L. Swanson “Millions of dollars and Euros” have been spent “on projects and awareness campaigns” to promote the use of mediation. “With few exceptions. . . this approach failed.” Leonardo D’Urso, April 2018 In recent years, Italy introduced a new and highly-successful mediation program. It’s success is described in this article by Leonardo D’Urso:... Continue Reading →

Clients Want To Be Involved in Settlement Negotiations: An Empirical Study’s Finding

By: Donald L. Swanson Finding from an empirical study: litigants "have great enthusiasm" for participating directly in settlement negotiations and have little enthusiasm for negotiations involving “only the attorneys.” --Prof. Donna Shestowsky in, “Research Report: How Litigants Evaluate Legal Procedures at the Start of their Cases,” 50 Court Review 126 (2014). Common Negotiation Practice I started... Continue Reading →

ADR Act of 1998: Defiance in Chicago’s Bankruptcy Court?

By:  Donald L. Swanson Here's the local rule (adopted in November 2017) allowing mediation in Chicago's Bankruptcy Court (emphasis added): RULE 9060-1 MEDIATION AND ARBITRATION Except to the extent required by the Bankruptcy Code or Federal Rules of Bankruptcy procedure, parties to an adversary proceeding or contested matter need not request court approval before pursuing... Continue Reading →

Mediation Privilege in Full Bloom Under State Law

By: Donald L. Swanson The mediation privilege "provides for a broad screen of protection that renders confidential all communications . . . made as part of the mediation process." Grubaugh v. Blomo ex rel. County of Maricopa, 238 Ariz. 264, 359 P.3d 1008 (App. 2015). This Grubaugh v. Blomo case exemplifies a mediation privilege, created... Continue Reading →

Priorities of Litigants in Mediation and Other Dispute Resolution Processes: A 2016 Study Report

By: Donald L. Swanson “[I]f research were to suggest that litigants want to be included in the resolution process but do not desire free verbal exchanges between the parties,” how should ADR providers respond? --Donna Shestowsky in, “How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study, 49 U.C. Davis L. Rev. 793, 797 (2016).... Continue Reading →

ADR Act of 1998: Two Decades of Noncompliance, and an Artful Dodge in the Ninth Circuit

By:  Donald L. Swanson The Alternative Dispute Resolution Act of 1998 ("ADR Act") is celebrating its twenty-year anniversary this year.  It's impact has been highly effective -- but with some less-than-positive results.  This article is about the latter. The ADR Act provides in 28 U.S.C.  § 652(d): "Until such time as rules are adopted under... Continue Reading →

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 →

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