“Best Practices” for Preparing a Pre-Mediation Statement

By: Donald L Swanson “When writing a mediation statement . . . lawyers fly blind. Large providers . . . offer little substantive guidance . . . Mediators themselves often fail to give explicit instructions . . . Most [law] schools rarely, if ever, teach budding lawyers about this niche genre of legal writing.” Brian Farkas*... Continue Reading →

Federal Arbitration Act is Superseded by U.S. Constitution’s “Uniform Laws on . . . Bankruptcies” Clause

By: Donald L. Swanson “The Congress shall have Power To . . . establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Constitution, Art. 1, Sec. 8 (emphasis added). Bankruptcy law is special, to begin with. There is no other area of law quite like it -- either legally... Continue Reading →

How to Get Sanctioned for Failure to Attend Mediation: Two Recent Examples

By: Donald L. Swanson Sanctions for misconduct in a lawsuit are, actually, rare. It takes some doing to get sanctioned. Here are two Federal Court cases where failures to attend mediation incur the sanctions wrath of the courts.  Sanctions in the first case total $41,712.83, while sanctions in the second case are only $1,357.46. The forty thousand... Continue Reading →

Congress Decided to Punish Consumer Debtors and Failed Entrepreneurs in BAPCPA — This is Terrible Policy!

By: Donald L. Swanson U.S. politicians love to talk about helping poor people—unless, that is, the poor owe money that can’t be repaid. U.S. politicians also love to talk about helping small businesses and entrepreneurs—unless, that is, the small business or entrepreneur owes money that can’t be repaid. When uncollectible debts are involved, politicians turn surly... Continue Reading →

Public Rights Doctrine — A Useless Tool in Bankruptcy

By Donald L. Swanson The U.S. Supreme Court’s “public rights” doctrine has been around for a long time. Yet, during the entire time of its existence, the Supreme Court, (i) has failed to explain the distinction between public rights and private rights, and (ii) has been inconsistent in applying that distinction. Unfortunately, our bankruptcy world has... Continue Reading →

How a Mediator’s Failure to Disclose a Prior Mediation Creates Problems

By: Donald L. Swanson Mediators are always concerned about conflicts of interest and appearances of conflict—and of making sure pertinent details are disclosed before accepting a mediation engagement. It’s not very often that things work the other way: that a mediator must disclose a mediation before accepting another professional engagement. But here’s a July 2018 appellate... Continue Reading →

Chapter 12 Debt Limit Should Be Eliminated

By: Donald L Swanson Chapter 12 of the Bankruptcy Code exists for the protection of family farms. However, Chapter 12 has, from the beginning, imposed a debt limit for eligibility [Fn. 1].  This debt limit needs to be eliminated.  Here’s why. Family Farms—Then and Now Back in 1986, at enactment of Chapter 12, the vast majority... Continue Reading →

The “Nature of a Dispute”: It’s Impact on Success or Failure of Mediation

By Donald L. Swanson The nature of a dispute “will have a significant impact on the success or failure of a mediation attempt,” and “unfavorable dispute characteristics are likely to defeat even the most adroit mediators.” Profs. Jacob Bercovitch and Jeffrey Langley, University of Canterbury, in The Nature of the Dispute and the Effectiveness of International... Continue Reading →

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