Private Mediators: A Solution to Budget Pressures on Circuit Court Mediation Programs

By: Donald L. Swanson The U.S. Circuit Courts of Appeals have, for many years, administered their own mediation programs for civil cases.  The administrators and mediators in such programs are, typically, Federal employees. Such mediation programs are also characterized, typically, by the following: --mandatory referral of cases to mediation with no-extra-charge for mediator services --mediation... Continue Reading →

Puerto Rico: Nonpartisan Bankruptcy Issues and Hurricane Maria’s Silver Lining

By Donald L. Swanson Imagine this: opposing political partisans singing Kumbayah together over bankruptcy issues and laws! It could happen. It’s because of this rule of thumb: --There is no political constituency for bankruptcy issues – such issues are nonpartisan and apolitical. Put another way, neither conservatives nor liberals nor moderates (nor any other political partisan)... Continue Reading →

Thirty Experienced Mediators Reveal the Secrets of Their Success

By:  Donald L. Swanson Prof. Stephen G. Goldberg surveyed 30 experienced and successful mediators: 28 had mediated at “least 100 disputes,” and 2 had mediated “more than 50 but less than 100.” He wanted to know “how they accounted for their successes.” Prof. Goldberg reports his survey findings in, “Mediators Reveal Their Essential Techniques for... Continue Reading →

Federal Arbitration Act Needs a Bankruptcy Exception

By Donald L. Swanson This article is in follow-up to a prior one titled, "Federal Arbitration Act vs. Stern v. Marshall: So . . . What's Fair About This?"  The point here is that we need a bankruptcy exception to the Federal Arbitration Act. Litigation in bankruptcy: Here's how the issue arises. A Chapter 7, 11,... Continue Reading →

How Mandatory Mediation Succeeds: Seven Illustrations

By: Donald L. Swanson “Mandatory mediation” is a self-explanatory term.  It means this: –Disputing parties are required by court order or rule of law to participate in a mediation session. Mandatory mediation is a common tool for resolving disputes.  However, a reticence still exists, in much of the bankruptcy world, toward mandatory mediation.  The sources... Continue Reading →

Recovering Tax Payments From IRS as Fraudulent Transfers (§ 544(b)): The “Actual Creditor” Issue

By: Donald L. Swanson The fact scenario is this. An S corporation pays its own taxes each year. Then it files bankruptcy. So, the bankruptcy trustee sues the IRS for recovery of those tax payments as fraudulent transfers.  It does so under two different sections of the Bankruptcy Code: (i) Under § 548, for payments within... Continue Reading →

Mediator vs. Early Neutral Evaluator: A Confusion of Roles

By Donald L. Swanson Examples of “an alternative dispute resolution process” include, “early neutral evaluation, mediation, minitrial, and arbitration.” --28 U.S.C. § 651(a) (from the Alternative Dispute Resolution Act of 1998). Over time, the word “mediation” has come to be a shorthand term encompassing all non-binding alternative dispute resolution processes. And the result is often a... Continue Reading →

“Bad” Fraud v. “Desperate” Fraud: The Ancient Pitkin / Brerewood Affair

By Donald L. Swanson Fraudulent conduct is as old as humanity itself. And it’s not going away. A Distinction: Bad Fraud v. Desperate Fraud Not all fraud is alike. --Two Illustrations My first experiences with fraud [or what might have been fraud – I’m not really sure] are in early high school days. Growing up on... Continue Reading →

“Hallway Mediation” for Multi-Party Disputes that are Stuck and Going Nowhere

"Hallway Mediation" is this: Putting multi-party disputants into a room to talk about their disputes, with the mediator orchestrating (or maybe it's refereeing) the event. I call it "Hallway Mediation" because that's where I first saw it happen and learned to do it: in the hallways outside the Bankruptcy Courtrooms in Omaha, Lincoln and North... Continue Reading →

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