Proactive Mediation is Becoming Standard: The Syngenta Example

By: Donald L. Swanson In a remarkable demonstration of cooperation and coordination, three separate courts (both Federal and State) enter proactive mediation orders and appoint the same mediator in three related cases. Fact Background The cases involve a genetically modified strain of corn developed and marketed by Syngenta.  The new strain gets regulatory approval from... Continue Reading →

Seven Reasons Why Mediation Mandates in Federal Statues Apply to Bankruptcy Courts

By: Donald L. Swanson "Each United States district court shall,” by local rule: --“authorize . . . the use of alternative dispute resolution processes in all civil actions, including adversary proceedings in bankruptcy”; --“devise and implement its own alternative dispute resolution program "; --"encourage and promote the use of alternative dispute resolution in its district";... Continue Reading →

Federal Circuit Leads-the-Way for Holdouts Adopting Local Mediation Rules

By: Donald L. Swanson The U.S. Circuit Court of Appeals for the Federal Circuit has been a maverick.  For decades it was the lone mediation holdout among all U.S. Circuit Courts of Appeals. In the mid-1970s, a mediation program is pioneered by one of the Circuit Courts.  By 1987, five of the thirteen Circuit Courts... Continue Reading →

A Final Step to Uphold Mediation Confidentiality in Federal Courts

By: Donald L. Swanson   (d) Confidentiality Provisions.— Until such time as rules are adopted under [28 U.S.C. §§ 2071 et seq.] providing for the confidentiality of alternative dispute resolution processes . . . , each district court shall, by local rule adopted under section 2071(a), provide for the confidentiality of . . . dispute resolution... Continue Reading →

Six Illusions that Restrict Mediation

By: Donald L. Swanson We all make assumptions -- every day -- about many things.  Our false assumptions are our illusions. There are many illusions about mediation, most of which place restrictions on the role and effectiveness of the mediation process.  We all have them.  Fortunately, we now have solid evidence to dispel some of... Continue Reading →

There’s No-Such-Thing as a “Mediation Privilege” in Federal Court?!

By: Donald L. Swanson It's a beautiful scene:  Federal courts applying and enforcing their local rules on mediation confidentiality. --Nearly all U.S. District Courts and U.S. Circuit Courts of Appeals, and many Bankruptcy Courts, have such local rules. But then the Ninth Circuit Court of Appeals comes along with a bombshell.  It suggests that local... Continue Reading →

Mortgage Modification Mediation (“MMM”) . . . A Program Worth Adopting

By: Matthew Gillespie For many, if not most of us, our homes are our biggest assets. The inverse of this is also true – our mortgages are often our biggest liabilities. It makes sense, then, that in Chapter 13 consumer bankruptcies, a debtor’s mortgage can have a major impact on the success (or lack thereof)... Continue Reading →

Court Rejects “Fraud” Exception to Mediation Confidentiality!

Guest Article By John G. Loughnane, Partner Nutter McClennen & Fish LLP The Massachusetts Appeals Court recently issued an opinion in ZVI Construction Co. v. Levy, et al., 90 Mass. App. Ct. 412 (2016), refusing to override the terms of a written confidentiality agreement entered into between parties to a mediation.  The opinion is noteworthy because it refuses... Continue Reading →

Mediating Plan Confirmation Issues: ABI’s “Bankruptcy Mediation” Book

By: Donald L. Swanson "Chapter 11 plans are inherently suitable for mediation. After all, chapter 11 success is generally defined as a confirmed consensual plan of reorganization, not a contested confirmation battle; that is, it is a settlement, not a victory. "      --Hon. Lisa Hill Fenning, retired bankruptcy judge and Partner at Arnold... Continue Reading →

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