Innovation by the Second Circuit: Creating a Mediation Pathway in the 1970s

By: Donald L. Swanson “The civil Appeals Management Plan (CAMP), now operating in the United States Court of Appeals for the Second Circuit, is an innovative set of reforms in the appellate process. . . . This is the first time the [mediation] procedure has been implemented systematically.” --1977 Report of the Federal Judicial Center,... Continue Reading →

Include “Settlement Document Preparation” in Pre-Mediation Checklist to Avoid Wasteful Litigation

By: Donald L. Swanson More than three years of wasted litigation:  that’s what it looks like from the outside. The parties had been fighting, in 2012 and early 2013, about a management agreement for operating a casino. But in June of 2013 the fight changes from a dispute over the management agreement to a dispute... Continue Reading →

The “Sporting Theory of Justice” and the Mediation Profession: Roscoe Pound

By: Donald L. Swanson The response of the [American Bar] Association to that 1976 re-examination of Pound’s criticism was immediate . . . One very important program was aimed at developing alternative methods for resolving disputes.             --Chief Justice Warren E. Burger, February 12, 1984. Roscoe Pound, a young man from Nebraska in 1906, became... Continue Reading →

Mediation Without Confidentiality Rules: This Needs to Change

By: Donald L. Swanson “You don’t need my permission. Just click your heels together three times and say, ‘There is no place like mediation.’” --U.S. Bankruptcy Judge Benjamin Goldgar, In re Caesars Entertainment hearing on 2/18/2016. Despite such a statement, the Bankruptcy Court in Chicago had already, prior to February 2016, revoked its local rules... Continue Reading →

How the Mediation Profession Began: from Chief Justice Warren E. Burger, 1984 (Part 1 of 2)

By: Donald L. Swanson In days-gone-by, civil lawsuits commonly end in a judgment after trial or an appeal. Today, civil lawsuits commonly end in a mediated settlement. On February 12, 1984, Chief Justice Warren E. Burger explains some early history for such change, to a meeting of the American Bar Association.  His speech begins like... Continue Reading →

Bankruptcy’s “Mediation Desert” Needs to Bloom: The Eighth Circuit Example

By: Don Swanson I’m always hesitant to say something doesn’t exist . . . because I might have missed it. --Nevertheless,  I’m going to give it a shot, knowing I can, later, edit-out any error brought to my attention. My focus, here, is on whether bankruptcy courts within the Eighth Circuit Court of Appeals system (the... Continue Reading →

Bankruptcy’s ADR Rules Have Changed Little Over the Past Century

By: Donald L. Swanson Alternative dispute resolution provisions (“ADR”) involving arbitration and compromises have been part of U.S. bankruptcy laws since at least 1898. ADR Bankruptcy History – From 1898 An 1899 publication of the U.S. “National Bankruptcy Act of 1898” provides for “Arbitration of Controversies” and for “Compromises” in consecutive sections as follows: --“§... Continue Reading →

City of Detroit Withstands Another Challenge to Its Confirmed Bankruptcy Plan

By: Donald L. Swanson Who knew that the City of Detroit’s confirmed bankruptcy plan is still in legal jeopardy? Well . . . it is.  But the jeopardy today is much-less than it was two days ago. Several Detroit pensioners had challenged the City of Detroit’s plan confirmation order because the plan reduced their benefits. ... Continue Reading →

How the Mediation Privilege Works, with an “Opened the Door” Exception: a New Bankruptcy Court Ruling

By: Donald L. Swanson Four law firms are squabbling over how to divide a $20 million attorney fees fund in a bankruptcy case.  [Insert your own derisive epithet here.] The Facts A two-year and multi-session mediation results in settlements of asbestos-related claims.  One such settlement involves a $90 million payment from an insurance company, $70... Continue Reading →

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