Mediation is “A Very Young Profession”: A New Study of Mediation in the U.K. [Part 2]


By Donald L. Swanson

“Commercial mediation is firmly established in the dispute resolution landscape.    We are, however, still a very young profession.”

This is a finding of the Centre for Effective Dispute Resolution (located on Fleet Street in London, England) in its “Seventh Mediation Audit: A survey of commercial mediator attitudes and experience” dated May 11, 2016.

The Audit’s conclusion adds this:

“We should not, however, lose sight of the need also to raise our game at the top of the profession”

–“there are signs in these Audit results that mediations are becoming harder, something which should not be surprising given that lawyers’ negotiation skills are getting better.”

–“After all, no-one is going to pay us to push at an open door.”

Such conclusions, though describing mediation experience in the United Kingdom, could be directly applicable to the bankruptcy mediation experience in these United States:

“A very young profession”

If mediation, in general, is “a very young profession,” then bankruptcy mediation is still in its infancy in the U.S.

–In Nebraska, for example, mediation has been in general use for several decades in state and federal district courts.  But Nebraska’s Bankruptcy Court adopted its local mediation rules in 2011 – and the Nebraska court is an early adopter of such rules.

–Heck, many bankruptcy jurisdictions still don’t have any local mediation rules – and we are already a half-decade removed from Nebraska adopting its rules.

So, we in bankruptcy mediation (on all sides of the table) are still learning as-we-go . . . and sometimes even making-it-up as-we-go.

“Firmly established in the dispute resolution landscape”

Despite its infancy, mediation is well-established in the dispute resolution landscape for bankruptcy.  This is true throughout the United States, including such influential bankruptcy jurisdictions as Delaware and S.D.N.Y. and such seminal bankruptcy cases as the City of Detroit and the diocese cases.

Some pockets of indifference or resistance toward mediation still exist, here and there, among bankruptcy courts.  But such pockets are clearly on the back side of progress.

“Mediations are becoming harder”

I think business bankruptcy mediations, in general, are harder than other mediations [my apologies in advance to everyone who takes umbrage at this opinion].  Here are some reasons why:

–When a business files bankruptcy, all it’s legal issues come to a head—all at once—and must be addressed.

–Multiple parties are commonly involved and interested in many bankruptcy issues, and all such parties and their interests must be accounted for in any mediation.

–Bankruptcy is, in general, an expedited process, so mediation often occurs before an opportunity exists for extended discovery or other litigation efforts.

–The goal of maximizing value often takes precedence over litigation efforts.

“No-one is going to pay us to push at an open door”

Ha!  Now that’s funny . . . in a “the truth is funny” sort of way.


What do you think about all of this?








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