The “Nature of a Dispute”: It’s Impact on Success or Failure of Mediation

By Donald L. Swanson The nature of a dispute “will have a significant impact on the success or failure of a mediation attempt,” and “unfavorable dispute characteristics are likely to defeat even the most adroit mediators.” Profs. Jacob Bercovitch and Jeffrey Langley, University of Canterbury, in The Nature of the Dispute and the Effectiveness of International... Continue Reading →

Was the Mediator Blind to Collusion During Mediation, Or Part of It?

By Donald L. Swanson “objectors essentially suggest that [the mediator] was too blind to see collusion at the tip of his nose during the mediation, or that [he] was part of the collusion. The court rejects these insulting, baseless arguments.” Speaks v. U.S. Tobacco Cooperative, Inc., 324 F.R.D. 112, 140 (E.D.N.C. 2018). The Facts On October... Continue Reading →

Early Mediation of Plan Confirmation Issues in Difficult Chapter 11 Cases

By Donald L. Swanson Bankruptcy courts “generally presume that good chapter 11 lawyers can and should negotiate without the help of an outside mediator.” However, some Chapter 11 cases are “so inherently complex” or “riddled” with “high levels of distrust” that “the presiding judge (or more rarely, the parties) views the appointment of a plan mediator... Continue Reading →

An Empirical Study of Bargaining in Mediation

By: Donald L. Swanson Confidentiality requirements are a difficulty for empirical studies of mediation. But a 2015 study gets around such difficulties and provides insights on details of mediation negotiations. The study is, “Inside the Caucus: An Empirical Analysis of Mediation from Within” [Fn. 1]. Here’s how confidentiality difficulties are minimized in the study: The study... Continue Reading →

Optimum Timing for Mediation: Early . . . but Not Too Early

By: Donald L. Swanson Mediation should occur "at some reasonable point,” (i) “before discovery is completed,” and (ii) after “critical motions have been decided.” --Suzanne J. Schmitz, A Critique of the Illinois Circuit Rules Concerning Court-Ordered Mediation, 36 Loy. U. Chi. L. J. 783 (2005). Early Mediation Referral Law Professor Suzanne J. Schmitz says that mediation... Continue Reading →

A False Assumption: Some Types of Cases are “Not Amenable” to Mediation

By: Donald L. Swanson The U.S. Sixth Circuit “moved to random selection” of cases for mediation because “cases that appeared to be amenable to mediation were not actually more likely to settle than any other case.” Sixth Circuit Appellate Blog, April 6, 2012. A False Assumption One of the early assumptions about mediation is that some... Continue Reading →

Four Characteristics of Successful Mediators — from a Study of Mediation in International Relations

By: Donald L. Swanson “Successful Mediation in International Relations” reports on a  study of 79 international disputes (of which 44 were mediated) occurring between 1945 and 1989. The study identifies multiple characteristics of successful mediators in the international realm.  As to each of such characteristics, the following question needs to be asked: --Does this characteristics... Continue Reading →

A Study on Effects of “Apology” on Plan Confirmation in Consumer Bankruptcies

By: Donald L. Swanson “Using a sample of U.S. bankruptcy judges,” this study “asks whether a bankrupt consumer improves her situation by apologizing for breaching her promises.” From a 2013 “Bankruptcy Apologies“ study by two professors from the University of Illinois College of Law [Fn. 1]. An “apology” can be a factor (often a decisive one)... Continue Reading →

Reflecting Feelings and Interests — A Mediation Study

By Donald L. Swanson A 2016 report on a mediation study looks at how a mediator reacts with participants.  Specifically, the study evaluates what happens when a mediator: --reflects back to participants what the participants themselves express --focuses on a participant's feelings/emotions --focuses on a participant's underlying interests. Findings When a mediator does such things, participants... Continue Reading →

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