“Blackmail” Exception to Mediation Privilege: A New Appellate Opinion

By: Donald L. Swanson Mediators and mediating parties beware! The Facts The mediation of a contentious commercial case concludes without an agreement.  But the mediator keeps trying. The mediator sends a post-mediation email to counsel for “Jonathan” conveying a proposal, which includes these statements from the other party: --“Jonathan knows the extent of his wrongdoings... Continue Reading →

How Mediation Developed — A Local Example (Part 1)

By: Donald L. Swanson In Omaha, Nebraska, where I live and practice, mediation plays a central role in civil litigation outside the Bankruptcy Court.  And it's playing an increasing role in Bankruptcy Court as well—but that's a story for another day. Mediation is a vital part of the civil litigation culture around here.  And it's... Continue Reading →

What Should be the Mediator’s Role in Documenting a Settlement Agreement?

By: Donald L. Swanson Conventional thinking (as I understand it) is that mediators should not have a role in preparing a settlement-terms document that concludes a successful mediation. I'm suggesting that a mediator can/should have a limited-and-neutral role in preparing such a document.  Here's why. Some Ancient History Its 25 years ago -- or more.... Continue Reading →

Mediation:“Open-Mindedness” v. “Militant Open-Mindedness”

By: Donald L. Swanson I’m scanning a news article earlier this week. The term “militant open-mindedness” catches my eye. My immediate reaction is excitement: --“Oh great!  This will provide a lesson and analogy for mediation!” --After all, “open-mindedness” is “a receptiveness to new ideas” and a belief that “others should be free to express their... Continue Reading →

They’re in a bit of a pickle — Part Three: Conflicts of Interest for Bankruptcy Judges as Mediators in Chicago

By: Donald L. Swanson One reason given by the Chicago Bankruptcy Court for the recent revocation of its Local Mediation Rules is this: --Several Judges in the Chicago Bankruptcy Court have agreed to mediate cases for their colleagues on that Court. The pickle is this: --such intra-court mediator appointments create a conflict of interest. This... Continue Reading →

“How Do I Get a Bankruptcy Case to Mediate?” Or . . . “How Do I Find Someone to Mediate My ‘Smaller’ Bankruptcy Case?”

By Donald L. Swanson You are out there: professionals who've had mediation training and are set-to-go as mediators of bankruptcy disputes but, alas, are still looking for cases to mediate. I'd like to introduce you to some attorneys who can't afford a mediator for their smaller-amount cases: they are reading this article. Attorneys with smaller-amount... Continue Reading →

The Absolute Priority Rule Torpedoes Mediation in Individual Chapter 11 Cases (Part Two)

By: Donald L. Swanson A tragedy of recent Chapter 11 times is this: --it looks like Congress tried to remove the absolute priority rule from individual Chapter 11 cases (see the "individual" exception in § 1129(b)(2)(B)(ii) photo above); but Congress didn't quite get the removal words right, according to subsequent court rulings. We now have... Continue Reading →

Mandatory Mediation & Good Faith: “You can lead a horse to water, but . . . “

By: Donald L. Swanson Mandatory mediation is a good thing [see, e.g., my blog post titled, "Local Bankruptcy Rules Without Mandatory Mediation are Like a Toolbox Without a Vise-Grip"]. But the words "mandatory mediation" refer only to a required process.  They do not suggest any such thing as compelled settlement or compelled concession or even... Continue Reading →

Total Artificial Heart: How Bankruptcy Provides a Valuable Service – And a Proactive Mediation Suggestion

By Donald L. Swanson Bankruptcy often deals with failure, loss, and broken promises.  So it has a bad reputation. But bankruptcy often provides a valuable service in time of need.  And we now have a new example of this: --a company that supplies total artificial hearts to people at death’s door. SynCardia Systems, Inc., filed... Continue Reading →

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