The Problem of Representing a Small-Player in a Multi-Party Mediation

By: Donald L. Swanson Have you ever been in a multi-party mediation representing a small-player in the dispute. I don’t mean your party is “small”: I mean that your party’s position in the over-all dispute (while extremely important to the client) is viewed by others as a lower-tier issue. I have. And it’s a difficult situation:... Continue Reading →

Correcting a Defect in Chapter 7: New Effort to Overturn Dewsnup v. Timm

By: Donald L. Swanson You know how bankruptcy debtors can strip-away out-of-money liens in Chapters 11, 12 and 13, using 11 U.S.C. § 506? Well . . . they can’t do it in Chapter 7. That’s because of a screw-up by the U.S. Supreme Court in an early opinion under the Bankruptcy Code—the opinion is Dewsnup... Continue Reading →

Part Two — Contingent Fee or Success Fee For Mediators: Why Not?

By Donald L. Swanson Some time ago, I published an article titled, “Contingent Fee or Success Fee for Mediators: Why Not?”  The punchline of the article was, in the words of Paul McCartney, “Let it be.” Responses to the fees issue in that article were strong and largely negative, as expected. So, I’d like to take... Continue Reading →

Can You Be Held in Contempt for Obeying a Court Order? The U.S. Supreme Court Will Decide (Taggart v. Lorenzen)

By: Donald L. Swanson A Hypothetical: You’ve sued an individual in state court for injunctive and other relief. Your defendant then files bankruptcy and receives a Chapter 7 discharge. Then, you ask the state court to determine that you can proceed with the lawsuit, despite the bankruptcy discharge. The state court says you can, and so... Continue Reading →

Articulating an Opponent’s View, With Accountability: An Important Study for Mediators

By: Donald L. Swanson Immeasurable harm has resulted from an inability to appreciate that opposing views can be reasonable and coherent. A major cause of such harm is this: partisans lose touch with the views of others and dismiss contrary perspectives as foolish or biased. These propositions are from the authors of a 2015 study [Fn.... Continue Reading →

Mediated Settlements Require Court Approval in Bankruptcy: Limits on “Standing” to Object

By Donald L. Swanson Mediated settlement agreements in bankruptcy are subject to approval by the bankruptcy court after notice to interested persons. [Fn. 1] A Recent Case An entity named “Empower” took aggressive action in a recent bankruptcy case to prevent approval of settlements and a plan, all of which arose from extensive negotiation and mediation... Continue Reading →

The Mediator as Proactive Leader

By Donald L. Swanson “The concept of a mediator going outside of the role of just settling a dispute and soliciting money to help settle that dispute is unprecedented in the history of bankruptcy and in the history of mediation as far as I know.” --Judge Steven Rhodes, as quoted in “Detroit Resurrected: To Bankruptcy... Continue Reading →

A Practical Question That’s Being Ignored at U.S. Supreme Court (Mission Product v. Tempnology)

By: Donald L. Swanson Oral arguments are scheduled for February 20, 2019, before the U.S. Supreme Court in Mission Product Holdings v. Tempnology, LLC (Case No. 17-1657). Legal Question – Effect of Rejection The legal question in Mission Product v. Tempnology is whether the “rejection” of a trademark license agreement—which constitutes a breach of such agreement—terminates... Continue Reading →

Two Mediation Tools: Bracketed Bargaining and Mediator’s Proposal

By: Donald L. Swanson Bracketed bargaining and a mediator’s proposal are useful and effective mediation tools. Each has its own role and function—which do not overlap. These two tools are examined in a 2015 empirical study titled, “Inside the Caucus: An Empirical Analysis of Mediation from Within” [Fn. 1]. The study is based on 400 employment... Continue Reading →

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