How Mediation Developed — A Local Example (Part 1)

A Douglas County Courtroom, Omaha, Nebraska

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 been that way for quite a while.  It seems that attorneys plan for mediation as part of their strategy in any given case.

Mediation rules in Nebraska’s Federal District Court encourage mediation.  For example,

–Its “Mediation Plan” authorizes a federal judge to “refer a case to mediation” when the judge finds “a resolution of the case by mediation a practical possibility.”

–Its “Rule 26(f) Report” form requires competing attorneys to address mediation possibilities and timing at the beginning of a case.

And Nebraska’s Dispute Resolution Act for state courts begins with these findings:

–“Mediation of disputes has a great potential for efficiently reducing the volume of matters which burden the court system in this state”; and

–“Mediation can increase access of the public to dispute resolution and thereby increase public regard and usage of the legal system.”

Neb. Rev. Stat. § 25-2902(2) & (7).

If you talk with Omaha trial attorneys about civil cases they’ve recently concluded and successes they’ve achieved, you’ll hear stories about excellent results through mediation.

One reason is this comparison:

–all sides to a mediation settlement often walk away with a tale of success; whereas,

–the results of a trial leave at least one party, if not all parties, with disappointment and loss.  [Editorial note: Based on a career-in-court, I’m well-familiar with the concept of all-parties-are-disappointed after trial.]

Mediation has become a highly-valued tool in Omaha for resolving civil lawsuits because . . . [drum roll] . . . it works – and it works well.  As a result, mediation is ingrained in the civil litigation culture.  And here’s guessing that this is similar to what’s happening elsewhere.

Based on the foregoing, it’s surprising that the use of mediation in bankruptcy courts has been slower to catch on.  After all, settlements are at the essence of what bankruptcy is all about.

But the sense is growing that mediation is heading toward the same central role in bankruptcy courts that it currently holds in other litigation arenas.







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