“I’m Not Comfortable With Requiring Mediation” = Unfounded Squeamishness

By: Donald L Swanson

“Any district court that elects to require the use of . . . alternative dispute resolution in certain cases may do so . . . with respect to mediation.”

Alternative Dispute Resolution Act of 1998 (28 U.S.C. § 652(a)).

“I don’t feel comfortable requiring parties to mediate.”

Ubiquitous sentiment among judges.

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Squeamishness — Chihuly

I don’t get it. What makes judges squeamish about requiring parties to mediate?

–Judges order parties and attorneys around all the time—on both substantive and procedural issues; so what’s different about mediation?

–Judges are comfortable with “suggesting” that parties mediate—and parties rarely defy such suggestions; so why not “suggest” more often?

Most judges who express discomfort are unaware, I suspect, of the statutory authorization noted above (in 28 U.S.C. § 652(a)) for a judge to “require the use of mediation,” even though that statute has been around since 1998.

Some History Behind 28 U.S.C. § 652(a)

The 1998 statutory authorization, in § 652(a), to “require the use of mediation” did not arise in a vacuum. It’s history reveals that Congress wasn’t kidding and explicitly intended what the authorization says. Here is a portion of that history.

1990. Congress enacts the Civil Justice Reform Act of 1990 that authorizes (in 28 U.S.C. § 473(a)(6)(B)) district court judges to “refer appropriate cases to . . . mediation.”

1993. The Supreme Court revises Fed.R.Civ.P. 16(c)(2)(I) to read:

“At any pretrial conference, the court may . . . take appropriate action on . . . settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule.”

The 1993 “Notes of Advisory Committee on Rules” add that such “special procedures” language, in Rule 16(c)(2)(I), includes “mediation.”

Additionally, these same “Notes” explicitly skirt the issue of requiring mediation:

Rule 16(c)(2)(I) “does not attempt to resolve questions as to the extent a court would be authorized to require such proceedings.”

1998. Since the question of authority to “require” mediation remains unsettled, Congress steps into the gap with the Alternative Dispute Resolution Act of 1998, which includes this language in 28 U.S.C. § 652(a):

“Any district court that elects to require the use of . . . alternative dispute resolution in certain cases may do so . . . with respect to mediation.”

This § 652(a) authorization satisfies the “when authorized by statute” condition of Fed.R.Civ.P. 16(c(2)(I).

28 U.S.C. § 652(a) Applies in Bankruptcy By Two Separate Avenues

Ave. # 1:  “District Court” = Bankruptcy Court?

Each bankruptcy court is a “unit” of its district court (28 U.S.C. § 151). Accordingly, every reference to a “district court” in the foregoing statutes and rule should also apply to bankruptcy courts.

–Right?

You’d think so. After all, in light of the Administrative Dispute Resolution Acts of 1990 and 1996, the Alternative Dispute Resolution Act of 1998 and similar federal statutes and rules, bankruptcy courts would be the only dispute resolution body in the entire federal government to have escaped their effect.

–I don’t think bankruptcy courts are quite that special.

Ave. # 2:  Fed.R.Civ.P. 16(c)(2)(I)

Additionally, the Rule 16(c)(2)(I) language quoted above, as clarified by 28 U.S.C. § 652(a), explicitly authorizes bankruptcy court judges to require the participation of disputing parties in a mediation session.  Here’s how.

In Adversary Proceedings. Rule 16 is explicitly incorporated into bankruptcy’s adversary proceedings by Fed.R.Bankr.P. 9014(c), which says,

“Rule 16 F.R.Civ.P. applies in adversary proceedings.”

In Contested Matters.  Rule 16 is not included in the incorporation of Federal Rules of Civil Procedure into contested matters via Fed.R.Bankr.P. 9014(c). However, such Rule 9014(c) does add this provision:

“The court may at any stage in a particular matter direct that one or more of the other rules in Part VII shall apply.”

So, a bankruptcy judge can apply Fed.R.Civ.P. 16(c)(2)(I) in adversary proceedings and, also, may direct that Fed.R.Civ.P. 16(c)(2)(I) shall apply at any stage of any contested matter.  The bankruptcy judge can, thereby, require disputing parties to mediate.

Conclusion

Any federal judge, including bankruptcy judges, has every right and authority to require disputing parties to mediate—at any stage of any bankruptcy proceeding.

A bankruptcy judge can still say, “I’m not comfortable with doing that.” Such a sentiment is within the judge’s discretion. However:

The judge can’t pretend that the sentiment is based on some sort of ethical or moral or legal compunction; instead,

The sentiment is nothing more than a personal preference—sort of like saying, “I root for the Cubs over the White Sox.” That’s ok to say, but it’s a poor basis for decision in a bankruptcy case.

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