Discovering How Mediation Can Bring Order Out of Chaos

By Donald L. Swanson

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Chaos v. Order ??

Eons ago, as measured by the short history of bankruptcy mediation, we are representing a creditor in a contentious Chapter 11 case.

The case has many creditors, a wide range of constituencies and a chaotic existence.

Efforts to bring order are having limited success. So someone suggests mediation. Most parties think that’s a good idea, so we all show up in a large conference room for a mediation session.  There are at least a dozen parties present with their attorneys.

As the session begins, I’m realizing that this is an unprecedented event:

–it’s the mediation of a bankruptcy dispute — something I’d never seen before in my prior decades of experience;

–it’s also a mediation among many disputing parties — something I’d never seen before in any context.

[Ok, Ok. I know: the breadth of my experience may be limited.  But still, this event is unusual for its time under any standard of measurement.]

The mediation session lasts all day. Most of the day seems like a disaster because of little-or-no advance preparation.  Many of us have experience with two- and three-party mediations, but no one has any experience with a many-party mediation like this.

The session begins with an around-the-conference-room discussion.  Each party states its opening position.

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Chaos v. Order ??

Then groups of two and three disputing parties break into closed-door meetings, and not-included parties are wondering what-the-heck is going on. They complain to the mediator, who assures them everything is okay and advises them to keep talking [he’s a wise mediator on this point!]. They take his word for it–but are wondering if he knows whereof he speaks.

As the day wears along, parties continue acting on their own initiative: grabbing a disputing party and holding an impromptu discussion, then adding in another party, and then breaking up and beginning anew with another group of parties. The lines of communication, if diagrammed that day, would resemble movements on a chess board.

It’s actually a fun and exhilarating event—and much more so because it begins to bear fruit. As everyone leaves the session that evening, the sense of chaos and confusion is gone, a few issues are resolved, and an organization and structure are beginning to take shape for addressing the many issues that remain.

Disclaimer: I’m not suggesting this single-day mediation session works magic.  It doesn’t: nearly all battles remain unresolved, and some long and intense in-court fights are yet to occur.

However, this single-day mediation session stands in my mind as a highlight and turning point: a time when I saw chaos give way to order through focused mediation discussions amid intense conflict. What that day teaches is this:

–mediation communications will hasten dispute resolution processes in a difficult case, and

–even a chaotic and ill-prepared mediation session can improve the course that conflict takes.

While this one-day mediation session brought little in the way of immediate resolution, it accomplished a great deal in bringing order to a chaotic situation.

 

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