On Bankruptcy and Mediation
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 →
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 →
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 →
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 →
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 (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 →
England (photo by Marilyn Swanson) By: Donald L Swanson Small claims mediation efforts often languish. Many small claims parties don’t choose to use mediation—even when mediation is offered at a reduced fee or without charge. How can this be? It’s a mystery. Some small claims mediation efforts, by contrast, are successful. Here’s an example. High Volume... Continue Reading →
By: Donald L Swanson The opinion is Imamura v. General Electric Co., Case No. 19-1457 in the U.S. First Circuit Court of Appeals (issued April 24, 2020). Facts In 2011, an earthquake-induced tsunami struck the Fukushima Daiichi Nuclear Power Plant in Japan, triggering explosions and a nuclear disaster, which destroyed property and livelihoods of residents in... Continue Reading →
By: Donald L. Swanson “Joint Session <———> Caucus Only” "Fact Disputes <———> Law Disputes" A continuum? (Photo by Marilyn Swanson) These are two sets of mediation continuums. Here’s a theory I've heard on how the “joint session” to “caucus only” continuum and the "fact disputes" to "law disputes" continuum overlap in commercial cases. I'd like to... Continue Reading →
Judge Irving Kaufman By: Donald L. Swanson Judge Irving Kaufman is famous for many things, such as presiding over the Rosenberg espionage trial and rejecting the U.S. government’s attempt to deport John Lennon to the United Kingdom. But Judge Kaufman’s greatest legacy may be for his role in developing mediation as a primary dispute resolution... Continue Reading →
