Mediation Order in Purdue Pharma Bankruptcy: Managing A Tension

Managing tension (photo by Marilyn Swanson) By: Donald L Swanson On January 3, 2022, Reuters reports, under the heading “Judge orders mediation for Purdue, Sacklers over opioid settlement,” as follows: A U.S. bankruptcy judge orders mediation in the Purdue Pharma bankruptcy [fn. 1], calling for the company, the Sackler family members that own it and nine... Continue Reading →

Deposing A Mediator About What Happened In The Mediation (Roberts v. City of Fairbanks)

Pursuing a strategy? (Photo by Marilyn Swanson) By: Donald L Swanson “There is no federal mediation privilege”;“the mediator's testimony about the mediation is not privileged”; and“there is no legal bar to Defendants seeking the [mediator’s testimony] with regard to the mediation and settlement negotiations.” --Roberts v. City of Fairbanks, Case No. 17-cv-00034, U.S. District Court of... Continue Reading →

Over-Estimating The Persuasive Value Of Electronic Communications

Face-to-face communications (photo by Marilyn Swanson) By: Donald L Swanson Electronic communications (e.g., emails and texts) fail to convey the non-verbal cues that are readily apparent in face-to-face communications.  That’s an unsurprising conclusion from a study titled, “Ask in person: You're less persuasive than you think over email.”  [Fn. 1] Dominant Email and text communications are... Continue Reading →

A Mediator’s Motto: “Never Give Up” — And Its Unexpected Benefits

Patience and perseverance are required (photo by Marilyn Swanson) By: Donald L Swanson A mediator’s motto must always be, “Never give up.”  At the beginning of any mediation, a mediator will hear, all the time and from all the parties, “No, never!” So, a mediator must ignore such statements and keep talking—exercising patience and perseverance .... Continue Reading →

Mandated Mediation: An Effective Dispute-Resolution Tool

Reprinted with permission from the ABI Journal, Vol. XL, No. 9, September 2021. View the original publication here. By: Donald L Swanson Mandated mediation is authorized by federal statute. As such, 28 U.S.C. § 652(a) provides, “Any district court that elects to require the use of alternative dispute resolution in certain cases may do so only... Continue Reading →

“Puffing” In Negotiations — The Hazard Of Trust: A Study

When hazards happen (photo by Marilyn Swanson) By: Donald L Swanson “Puffing” is famously—or notoriously—known as acceptable negotiating behavior in these United States. “Puffing” means something akin to “fibbing”: taking exaggerated positions, pursuing hidden agendas, hiding the ball on willingness to bend, etc.  Although “puffing” in negotiations may be acceptable behavior, it is, often, not a... Continue Reading →

Study: Effectiveness Of Deadlines For Responding To Offers

An expired deadline? (Photo by Marilyn Swanson) By: Donald L Swanson Every party in a mediation or other negotiation effort puzzles over time limits for responding to offers.  Questions that offering parties often grapple with include: How long should the time limit be for responding?Should the time-limited offer be presented as a step in the negotiating... Continue Reading →

Pandemic-Induced Improvements In Judicial Processes Are Here To Stay: A Report

Revolutionary By: Donald L Swanson An early-in-the-pandemic report on judicial processes [fn. 1] shows how the pandemic produces a revolution in the way courts do business—a revolution creating improvements in court processes that are here to stay. What follows is a summary of that report. Pre-Pandemic Reality Before the pandemic began, US courts lag behind other... Continue Reading →

Litigious People Are Going to Litigate—And Mediation Can’t Change That Fact (In re Butko)

Stubborn persistence (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Butko, Case No. 20-21255 in the Western Pennsylvania Bankruptcy Court (decided 2/10/2021, Doc. 91). Litigious Parties The parties have been at it for awhile.  You know the history is bad, when a Court opinion begins its “Background” explanation like this: “In... Continue Reading →

Perils Of Mediating / Settling With Less Than All Defendants (Kennedy v. Alliance)

Include them all? (photo by Marilyn Swanson) By: Donald L Swanson Settling with less than all defendants in a lawsuit is always tricky. And mediating without all interested parties involved is also tricky. The problem is that non-settling / non-participating parties might, (i) blow a settlement up, once they learn of it, (ii) be released unintentionally... Continue Reading →

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