Practitioners need to constantly evaluate their local mediation customs to assure that better practices are identified and incorporated.
Four Examples of How Local Customs Impede Mediation
Do We Ask And Expect Too Much From Mediation? (A Fourth Circuit Mediation Order)
By Donald L. Swanson Sometimes, mediation is asked and expected to do a lot. And sometimes mediation is asked and expected to do more than it can actually perform: i.e., many puzzles and problems defy solution. A new mediation order out of the U.S. Fourth Circuit Court of Appeals asks and hopes for a lot from... Continue Reading →
Evaluating Choices in Mediation
Viewing options together nudges people to compare and contrast the options and focus on differences.
The Farm Economy: A Problem For Us All
That’s all well and good for us well-fed folk, who frequent grocery stores stocked with vast arrays of food choices. But such luxuries are not universal—even here in these United States.
When a Case is “Ripe” for Early Mediation
By Donald L. Swanson A 2018 mediation study [Fn. 1] tests the following hypothesis: That referral of a lawsuit to mediation at an early stage is more likely to lead to settlement than a later referral. What the study finds is that timing is a complex issue that’s influenced by and “could be a proxy for”... Continue Reading →
How To Mandate A Voluntary Mediation System That Thrives: A Minnesota Example
By Donald L. Swanson Back in 1994, Minnesota state courts adopt a "mandatory consideration" rule for alternative dispute resolution ("ADR") possibilities. The rule works, back then, like this: Attorneys are required to, (i) consider using ADR in every civil case, (ii) discuss ADR with their client(s) and opposing counsel, and (iii) advise the court of their... Continue Reading →
Mediation in New Zealand — A Study on How It’s Done
By: Donald L. Swanson Sometimes it’s helpful, in understanding our own situation, to look at someone else’s. Mediation is a common tool for resolving commercial disputes in New Zealand. A 2017 study of mediation in New Zealand reveals how it's done there: “From Anecdote to Evidence: The New Zealand Commercial Mediation Market [Fn. 1]. General Findings... Continue Reading →
Are Emotional Arguments Helpful or Harmful in Mediating Commercial Disputes?
By: Donald L Swanson Settlement = Assessment of Risks + Math I made up this unsophisticated formula decades ago to explain what happens when a negotiated settlement occurs in a commercial dispute. What I’ve found, since then, is that the formula holds true in the vast majority of cases—even when emotions and tempers are on edge.... Continue Reading →
Caucus Inadequacy and the Joint Session Solution for Multi-Party Mediations
By: Donald L Swanson Let’s say that a mediation among four parties or more is a “multi-party” mediation. Caucus Inadequacy Here’s how a caucus format works—inadequately—in a mediation among four parties: the mediation starts at 9:00 a.m. with a half-hour joint session to set the rules and format, whereupon, the parties split into sequestered conference... Continue Reading →
Is an Assault Committed During Mediation Protected by Confidentiality?
By: Donald L Swanson Confidentiality is a central tenet of mediation. Without it, mediation cannot function effectively. So, statutes and court rules provide for high levels of confidentiality in the mediation process. But what about an assault occurring within the mediation process? Can a mediator testify about the assault? And what if the assault is directed... Continue Reading →
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