How Mandated Mediation Works — Even When It Doesn’t

By: Donald L. Swanson The U.S. District Court for the Middle District of Florida has a mediation policy that’s mandatory. A dispute can be excused from mediation, however, “upon a determination” that it “is not suitable for mediation.” A recent case shows how the Middle District’s policy of mandated mediation offers more than one road to... Continue Reading →

A Formula Governing the Settlement of Business Disputes

By: Donald L. Swanson Settlement = Assessment of Risk + Math This formula describes the structural supports for settling a business dispute. And I’m still convinced of the formula's accuracy, based on long experience. The constancy of this formula’s application means that business people are, ultimately, rational beings—even when emotions run high. I mentioned the formula... Continue Reading →

Mediation Agreements as “Res Judicata”: Solid as Rock

By: Donald L. Swanson "mediated agreements are accorded the same res judicata effect and enforceability as a . . . judicial decree.” --Hoglund v. Aaskov Plumbing & Heating, No. WCB-05-280, slip op. (Maine S.Ct. Apr. 26, 2006) The foregoing quotation is the strongest articulation by a court I've seen on the strength and effectiveness and... Continue Reading →

Mediation Lesson from Northern Ireland Peace Process: Finding Core Principles is the First and Primary Task

By Donald L. Swanson Several years after the end of World War I, Winston Churchill penned these words about Northern Ireland: “The whole map of Europe has changed, but as the deluge subsides and the waters fall short, we see the dreary steeples of Fermanagh and Tyrone emerging once again. The integrity of their quarrel is... Continue Reading →

Early Mediation is Effective in Bankruptcy — More So Than in Other Disputes

By: Donald L. Swanson "When is the optimum time to mediate?" A 2015 Study That question is addressed in a 2015 study of 400 mediations titled, “Inside the Caucus: An Empirical Analysis of Mediation from Within.” These mediations were conducted by one of the study's authors, between 2008 and 2013, on employment disputes (e.g., discrimination and... Continue Reading →

Mediation as “Entirely-Voluntary”: An Unexamined Value That’s Not Worth Keeping

By Donald L. Swanson The unexamined life is not worth living. --Plato And an unexamined value is not worth keeping.  Here’s an unexamined value in mediation that’s held by many people: --“Mediation is an entirely-voluntary process and should not be mandated.” This value is expressed in many ways, such as: --“I will not order parties to mediate”... Continue Reading →

Mediation Confidentiality: Defenses Raised and Rejected

By Donald L. Swanson The Judges are irritated, to begin with. If anything is clear in In re Anonymous, 283 F.3d 627 (4th Cir. 2002), it’s this: the Judges on the U.S. Court of Appeals are more-than-slightly unhappy with the two attorneys in the case. A Confidentiality Issue The Court hauls two competing attorneys before the... Continue Reading →

The Problem of Representing a Small-Player in a Multi-Party Mediation

By: Donald L. Swanson Have you ever been in a multi-party mediation representing a small-player in the dispute. I don’t mean your party is “small”: I mean that your party’s position in the over-all dispute (while extremely important to the client) is viewed by others as a lower-tier issue. I have. And it’s a difficult situation:... Continue Reading →

Articulating an Opponent’s View, With Accountability: An Important Study for Mediators

By: Donald L. Swanson Immeasurable harm has resulted from an inability to appreciate that opposing views can be reasonable and coherent. A major cause of such harm is this: partisans lose touch with the views of others and dismiss contrary perspectives as foolish or biased. These propositions are from the authors of a 2015 study [Fn.... Continue Reading →

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