“Hallway Mediation” for Multi-Party Disputes that are Stuck and Going Nowhere

“Hallway Mediation” is this:

Putting multi-party disputants into a room to talk about their disputes, with the mediator orchestrating (or maybe it’s refereeing) the event.

I call it “Hallway Mediation” because that’s where I first saw it happen and learned to do it: in the hallways outside the Bankruptcy Courtrooms in Omaha, Lincoln and North Platte, Nebraska.

Some History

This all happened back in the Farm Crisis days of the 1980s, when I was first learning to practice law (I’m still trying to figure it out). The Bankruptcy Court consists, back then, of one Judge, one law clerk, one secretary, and a handful of people in the Clerk’s Office. And bankruptcy filings are exploding.

The Judge sets a hearing day for once or twice a week with, typically, a half-dozen matters scheduled for each hour, all day long. That means lots of standing-around time for all the attorneys: invariably, an early hearing goes long, pushing all other hearings back.

So, attorneys mill around the hallway, awaiting their turn. They start talking to opposing counsel, and negotiations begin. If they settle that day’s dispute, they advise the Court and go home. Most hearing disputes settle.

In multi-party disputes, a couple attorneys start talking in the hallway. Other interested attorneys eaves-drop and then join the discussion. Some attorneys break away for private negotiations and then rejoin the pack. Discussions always range beyond the immediate hearing to broader issues in the case.

When the scheduled hearings are finally called, the immediate disputes are often settled. But more importantly, everyone has a better understanding of the case, where it’s going, what the issues might be, and what actions and further negotiations are needed.

A week or two later, a new round of hearings happens in the same multi-party case, and the Hallway Mediation process repeats.

Meanwhile, discussions and negotiations continue between hearings. But attorneys come to rely on, plan for and utilize Hallway Mediation as an organizing strategy in every case.

Judge as Mediator

The Judge, back then, is filling a mediator-type role: he brings disputing parties together, gets them talking, and helps make settlements happen . . . albeit, in a round-about and indirect sort of way.

It works great . . . really, it does! . . . and especially-so in multi-party disputes that are stuck and getting nowhere.

We attorneys, back then, do not see this as mediation: heck, I didn’t even know mediation was a thing. But the process is, in retrospect, most definitely mediation-ish.

The End . . . and a Beginning

But then, improvements in telephone conferencing allow for hearings-by-telephone. This solves a major problem for Nebraska attorneys: namely, traveling long distances for court hearings — often through inclement weather and over icy roads.

But telephone hearings mark the end of Hallway Mediation in its original form. Those days are gone.

–And, it’s the death of the original Hallway Mediation that highlighted the need for mediation (in its more-usual form) in the Nebraska Bankruptcy Court, resulting in the adoption of Local Rules on mediation, encouragement and support of mediation efforts by the Bankruptcy Judge, and general acceptance of mediation by the bankruptcy bar in Nebraska.

A Common Experience — Which is Why it Works!

The description of my Hallway Mediation history above is neither unique nor unusual.  Most, if not all, bankruptcy attorneys have similar experiences with negotiations in court side hallways.  The details of each attorney’s experience will vary widely, but the essence of such experiences is in common.  And that’s why the “Hallway Mediation” defined above works today: because we’re all experienced at doing it.

Conclusion

“Hallway Mediation” for today is, in essence, a remake of what actually happened (back in the old days) in the hallway outside the Bankruptcy Courtrooms in Nebraska — and outside bankruptcy courtrooms everywhere.

Hallway Mediation is a remedy for multi-party disputes in every reorganization case that is stuck and going nowhere. Hallway Mediation will help get it going!

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