Pandemic-Induced “Impossibility” Of Performing A Mediated Settlement? (Belk v. LeChaperon)

Impossibility? (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is Belk, On behalf of herself and All others similarly situated v. Le Chaperon Rouge Co., et al., Case No. 1:18cv1954 in U.S. District Court, N.D. Ohio (decided July 6, 2020). The opinion addresses Plaintiffs’ Motion to enforce a mediated settlement agreement.  Defendants oppose the Motion on grounds... Continue Reading →

“Unavailable” Witness (Under Hearsay Rules) In A Zoom Trial?

Access is unavailable (photo by Marilyn Swanson) By Donald L. Swanson Like many attorneys, I’ve recently participated electronically in many court hearings, mediations and trials. That participation is via Zoom and similar platforms (I’ll refer to all, collectively, as “Zoom”). The Zoom technology is wonderful!  It is revolutionizing litigation processes.  And the resulting changes are here... Continue Reading →

When Mediation Confidentiality Doesn’t Apply–As A Matter of Law (Northern v. Coffey)

Unlimited access (photo by Marilyn Swanson) By: Donald L Swanson Mediation confidentiality is sacrosanct.  Or, so we are all taught in mediation training courses. But in a New Jersey case, from earlier this year, mediation confidentiality is not sacrosanct at all: communications before, during and after mediation sessions are testified to profusely by parties, attorneys and... Continue Reading →

Why Early Mediation is More Effective in Bankruptcy Reorganization Disputes than in Regular Commercial Litigation

By: Donald L. Swanson “’Early’ (mediation) is good and usually best”; but “Lawyers are not easily persuaded away from the view that they ‘need more info’ before they engage settlement discussions in mediation”; and “in many cases, they may be right.” --Comment by a mediation professional on a discussion board. I agree with this comment—100%—for regular... Continue Reading →

A Mandatory Mediation Process In New York — With Sanctions Procedures

New York By: Donald L Swanson As necessity is the mother of invention, so mandatory mediation programs are the progeny of overburdened courts and backlogged dockets. That’s what happened, a couple years ago, in a New York appellate court: this overburdened court, with seriously-backlogged dockets, instituted mandatory mediation as one of a series of steps to... Continue Reading →

How Multiple Settlement Alternatives in Mediation are a Disadvantage

By: Donald L Swanson Conventional wisdom says that negotiators prefer multiple settlement alternatives, over a single alternative, because they expect to get better deals when they have more than one. However, such conventional wisdom is wrong, according to a study [Fn. 1] that uses five experiments with simulated negotiations. Multiple Alternatives = Disadvantage in Negotiations The... Continue Reading →

Pandemics (Old & New), Prisons, And A Mediation

By: Donald L Swanson Pandemics and prisons don’t go together well -- this we’ve learned from long history.   What follows are three examples: one is new (with mediation involved), and two are old. 2020 -- Covid A June 5, 2020, order from the New Jersey Supreme Court deals with an old issue: prisons and pandemics. The... Continue Reading →

Mediation: Sometimes A Judge Must Rule Before Parties Will Settle (In re C2R)

Waiting a tad-too-long? By: Donald L. Swanson It happens in the Chapter 11 case of In re C2R Global Manufacturing, Inc., (Case No. 18-30182 in Eastern Wisconsin Bankruptcy Court): the judge must rule before the parties will settle. That may seem a tad-too-late. But it happens, and In re C2R is Exhibit A. Disputes C2R Global... Continue Reading →

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 →

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