“Mediation Desert” = A Court Without Mediation Rules

Mediation Desert (photo by Justin Swanson)

By: Donald L. Swanson

“Food deserts” are “places where many residents don’t have access to a full-service grocery store within a mile of home in urban areas or 10 miles in rural ones.”

–Wall Street Journal, 7/12/2015

“Mediation deserts” are courts that don’t (or won’t) provide access, by rule or statute, to mediation as a dispute resolution tool.

It’s hard to imagine that a mediation desert can exist these days in any court, anywhere, in the United States: state court, county court, city court, Federal court – any court.

But to have multiple mediation deserts within the Federal court system is astonishing!

–The last numbers I’ve seen indicate that nearly 50% of all bankruptcy courts operate without a local mediation rule.  Here’s hoping this percentage is grossly incorrect!

And, of course, there is no express provision for mediation in the Federal Rules of Bankruptcy Procedure (other than Rule 8027 regarding appeals).

And, as I’ve attempted to show in a number of articles, bankruptcy courts are probably the only mediation deserts in the entire dispute-resolution system of the entire Federal government.

And, a cursory review of other courts throughout the state and local governments reveals a heavy use and reliance on mediation as a dispute resolution tool.

–One of the reasons for the prominence of mediation and other alternative dispute resolution tools is the burden of heavy caseloads.  Although bankruptcy court caseloads are, currently, on the light end, history shows that such reprieves are short-lived and are bound to evaporate.

And it’s not like the task of adopting a local rule is difficult.  It’s, actually, a relatively simple process.  Heck, there are even Model Mediation Rules available through the American Bankruptcy Institute.

We need to turn these mediation deserts called bankruptcy courts into mediation oases.  We can do so by:

  1. Adding an explicit mediation provision to the Federal Rules of Bankruptcy Procedure, as suggested herehere and here; and
  2. Adopting local mediation rules in each of the mediation desert bankruptcy courts, as suggested here and here.


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