A Mediator–ish Role: “Settlement Counsel”

By: Donald L. Swanson Here’s an experience that’s common to all trial attorneys. We’re working in our litigation War Room.  Trial is scheduled to begin in ten days.  Our focus on trial preparations is intense. But then the phone rings.  It’s an attorney on the other side with a settlement offer.  The offer is a... Continue Reading →

Mediation in China — Thousands of Years of Mediation History

By: Donald L. Swanson “There is nothing new under the sun.” --Ecclesiastes 1:9 My first-hand knowledge of China is limited: I’ve traveled to Beijing a couple times, spent time (both there and here) with Chinese citizens, practiced law with a Chinese national, etc. But here is something I’ve never understood: --How are personal and business... Continue Reading →

Professional Fees in Nortel Networks Bankruptcy are Massive, With a High Burn Rate Continuing

By: Donald L. Swanson Some not-surprising facts about professional fees in the Nortel Networks bankruptcy are: --The total amount is massive; and --The burn-rate continues without abatement. Keep in mind that: --The primary question in the Nortel Networks bankruptcy is this: How should a $7.3 billion sale proceeds fund be distributed? --Professional fees in the... Continue Reading →

Can a Lender Encourage its Borrower to Mediate a Dispute With a Third Party, Without Incurring Lender Liability Risks?

By: Donald L. Swanson Hypothetical: Bank’s borrower is in a lawsuit. Legal fees are mounting, with no end in sight. The attention of borrower’s management is consumed by it. Borrower’s business is suffering. And Bank wants borrower to get the case resolved. Question: Can Bank suggest, insist, or even demand, that customer schedule a mediation... Continue Reading →

People in Conflict Avoid Spending Time Together: A Bad Idea in Mediation?

“Nothing will lower your credibility faster than avoiding conflict.” --Morris Shechtman, 2003 By Donald L. Swanson Conflict is difficult.  And conflict is uncomfortable.  So, the easiest and most comfortable way to handle conflict . . . is to avoid it. That's why caucus-only mediation has become standard practice in many mediations of business disputes. In... Continue Reading →

How Mediation at the End of a Case is Wasteful

By: Donald L. Swanson When mediation occurs early-in-a-case, instead of late, “cases are more likely to settle, fewer motions are filed and decided, and case disposition time is shorter, even for cases that do not settle.” --B. McAdoo, N. Welsh & R. Wissler, “What Do Empirical Studies Tell Us About Court Mediation?” (2004) A lawsuit... Continue Reading →

🎶 “This is the dawning of the Age of Aquarius [for Bankruptcy Mediation]”🎶 — A New Jersey Example

By Donald L. Swanson "🎶Harmony and understanding,  Sympathy and trust abounding, . . . Aquarious🎶"                 --The Fifth Dimension The year is 1968.  The musical "Hair" debuts on Broadway, with the self-assurance of those who have thrown off the norms of prior generations.  Aquarius is now here, we are assured. I'm... Continue Reading →

Can a Party to a Mediation Agreement Oppose Its Court Approval?

By: Donald L. Swanson The plan confirmation process does not provide a party to the mediation “with a renewed opportunity to challenge the [mediated] settlement to which they are bound.”  --In re RPP, LLC, 547 B.R.158, 164 (Bkrtcy.W.D.Pa. 2016). The RPP, LLC bankruptcy case is a Chapter 11 reorganization, with plan confirmation occurring on June... Continue Reading →

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