Great Stuff at Joint Education Session of Mediation / Bankruptcy Litigation

American Bankruptcy Institute, Annual Spring Meeting — Education Session

By Donald L. Swanson

The panel of three people [two attorney mediators and a judge mediator] is superb.

We are at the American Bankruptcy institute’s Annual Spring Meeting in Washington, D.C..

The day begins with a fire-alarm evacuation of the hotel/convention center. But once this education session begins, the effort to get here is justified.

Here are my impressions from the session [not to be confused with what the speakers actually said]:

Education Session

–Substantive discussions prior to a mediation sessions are helpful in identifying and addressing:

–issues to be settled
–impediments and “barriers to settlement”
–crucial information needed before a mediation session can succeed (e.g., expert reports)
–crucial parties who need to be included in the mediation (e.g., insurance carrier)
–“Inhibitors” who will impede collaboration and need to be excluded from the mediation

–“Interpersonal dynamics” are at the heart of mediation efforts, so pre-session discussions should focus on and start dealing with:

–Bad blood between the parties
–Biases that each person holds (e.g., “we are good and they are bad”): i.e., begin a “de-biasing” process

–The opening “joint session” of a mediation can be a useful tool in getting the parties to start talking together and breaking down “us v. them” barriers.

–“The whole idea is to start them talking.”
–Use the “pebble theory” — begin with a small question (the pebble) like, “What is one thing we can all agree upon,” and proceed from there.
–If the parties start communicating well, the mediator should “stand down” and let the good vibes roll on.

–Parties often want to use a sitting bankruptcy judge as mediator, because sitting judges “are free” and because of the “expertise” they bring.

–Information on ethics in mediation (for both the attorneys and the mediator) is more daunting than I expected. Resources cited on this include, Ethical Guidelines for Settlement Negotiations, published by Section of Litigation, American Bar Association.

Anyone have anything to add?

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