Success of Mandatory Mediation Leads to an Expansion of its Role

By: Donald L. Swanson

It’s always great to see an experiment produce successes that lead to an expansion of the experimental endeavor.

This success-and-expansion is exactly what’s happened with mandatory mediation experiments in the Delaware Bankruptcy Court.

Delaware’s Mandatory Mediation

The Delaware Bankruptcy Court began mandating mediation, by local rule, in preference cases back in 2004.

Nearly a decade later, the Delaware Bankruptcy Court expands its mandatory mediation program to include all adversary proceedings filed in Chapter 11 cases. The new language, appearing in Local Rule 9019-(5)(a), is this:

–“all adversary proceedings filed in a chapter 11 case . . . shall be referred to mandatory mediation.”

The Delaware Bankruptcy Court’s history with mandated mediation is positive.  One advantage of such a mandate-by-local-rule is this:

–attorneys know that a mediation must occur before trial, so they plan on the mediation and incorporate mediation into their case plans and strategies.

Mandatory Mediation Elsewhere

In addition to the history of success-and-expansion in Delaware preference actions, mandatory mediation has a long history of success-and-expansion elsewhere too.  For example:

–In the Second Circuit Court of Appeals, mediation experiments from the 1970s contain a mandatory mediation component — and those experiments became successful.

–Today, nearly all of the U.S. Circuit Courts of Appeals have mediation programs with a mandatory mediation component that are similar to the Second Circuit’s experiment efforts in the 1970s.

A Prediction

Here’s predicting that mediation-mandated-by-local-rule will become increasingly prominent in bankruptcy courts throughout the land.