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

The whole includes its parts

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”;

–“require that litigants in all civil cases consider the use of an alternative dispute resolution process at an appropriate stage in the litigation”;

–“provide litigants in all civil cases with at least one alternative dispute resolution process, including, but not limited to, mediation.”

–“provide for the confidentiality of the alternative dispute resolution processes” and “prohibit disclosure of confidential dispute resolution communications.”

–Alternative Dispute Resolution Act of 1998, 28 U.S.C. §§ 651(a) & 652(a)&(d) (the “1998 ADR Act”). 

Here are Seven Reasons Why These Statutory Requirements Apply to Bankruptcy Courts

 1.  1984 Statutes — The whole includes its parts.

“In each judicial district, the bankruptcy judges in regular active service shall constitute a unit of the district court to be known as the bankruptcy court for that district.”

“Each bankruptcy judge, as a judicial officer of the district court, may exercise the authority conferred under this chapter.”

28 U.S.C. § 151.

“Bankruptcy judges shall serve as judicial officers of the United States district court established under Article III of the Constitution.”

28 U.S.C.§ 152.

These two statutes, when adopted in 1984, (i) “reconstituted” the bankruptcy courts “as a unit of the district courts,” and (ii) “created the bankruptcy court structure and jurisdictional scheme in force today.”  See Collier on Bankruptcy, 1.02[2] (1998).

It is difficult to imagine that Congress intended in the 1998 ADR Act  (14 years after enacting 28 U.S.C. §§ 151 & 152) to exclude the bankruptcy court “units” from its mediation directives to “district courts.”  If Congress intended such an exclusion, it would have expressly so-provided.

 2.  Responsibility for adopting local bankruptcy rules belongs to the district courts

Under Fed.R.Bankr.P. 9029(a), district courts hold local rule-making responsibility and authority for the bankruptcy courts:

“(a) Local Bankruptcy Rules.

(1) Each district court . . . may make and amend rules governing practice and procedure . . . within the district court’s bankruptcy jurisdiction.

Rule 9029(a)(1) allows for delegation by district courts of such rule-making power to the bankruptcy courts:

–“A district court may authorize the bankruptcy judges of the district . . . to make and amend rules of practice and procedure.”

But it is still the district courts who hold such power.

 3.  Some district courts include bankruptcy in their local mediation rules

Some U.S. district courts have determined that the 1998 ADR Act applies to their bankruptcy court units and to their judicial officers in bankruptcy.   The U.S. District Court’s Mediation Plan in Nebraska, for example, contains this operative provision:

–“Any district, bankruptcy, or magistrate judge may by order refer a case to mediation.”

 4.  Court opinions include bankruptcy courts, automatically, in statutory references to district courts 

Multiple court opinions are consistent with the idea that a statutory reference to “district court” includes, automatically, the district court’s bankruptcy unit.  For example:

In Browning v. Levy, 283 F.3d 761, 779 (6th Cir.2002), the Sixth Circuit explains:

“[T]he exclusive jurisdiction of the district courts over certain ERISA claims does not preclude such claims from being brought in bankruptcy proceedings, because the ‘bankruptcy court is not a free standing court,’ but rather a ‘unit’ of the district court.”

In In re Gianakas, 56 B.R. 747 (N.D.Ill. 1985), the District Court determines:

28 U.S.C. § 1452(a) allows “in plain language” a “removal to ‘the district court’”; and

–removal “‘to the district court’ implies the corollary, ‘including the bankruptcy “unit” of the district court, as defined in 28 U.S.C. §§ 151 and 157(a).’”

 5.  Bankruptcy cases are explicitly referenced in the 1998 ADR Act

The 1998 ADR Act explicitly references “adversary proceedings in bankruptcy” as one type of “all civil actions” that is included in its mediation directives.

 6.  Mediation authority is granted to bankruptcy courts by the 1998 ADR Act — bankruptcy courts don’t need the general authority of § 105

If the Alternative Dispute Resolution Act of 1998 applies exclusively to district courts, and not to their bankruptcy court “units” or to their bankruptcy “judicial officers,” where does a bankruptcy court get its power to authorize mediation or to require mediation confidentiality by local rule?

Surely, the general authority of 11 U.S.C. § 105 would authorize mediation.  But why rely on the generality of § 105 when the specific grant of authority already exists under the 1998 ADR Act?.

  7.  The 1998 ADR Act requires adoption of local mediation rules under 28 U.S.C. § 2071(a), which is the statute authorizing the amendment of local bankruptcy rules.

The 1998 ADR Act specifies in 28 U.S.C. § 651(b) that “district court” rules are to be amended under the authority of 28 U.S.C. § 2071(a):

“Each United States district court shall authorize, by local rule adopted under section 2071(a), the use of alternative dispute resolution processes in all civil action.”

This section 2071(a) is precisely the authority under which local bankruptcy rules are amended — even though § 2071(a) refers exclusively to “district courts” and makes no mention of bankruptcy courts.

In fact, when local bankruptcy rules are amended, the amending document commonly references the following laws as authority for the amendment:

–28 U.S.C. § 2071;

–Fed.R.Bank.P. 9029; and

–Fed.R.Civ.P. 83, which is incorporated by reference into Fed.R.Bankr.P. 9029.


It seems clear that mediation mandates in the 1998 ADR Act apply to both the district courts and their bankruptcy court units.



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