By: Donald L Swanson
“Any district court that elects to require the use of alternative dispute resolution . . . may do so only with respect to mediation, . . . “
–From 28 U.S.C. § 652(a)—Alternative Dispute Resolution Act of 1998.
The correct view on a Federal court’s authority to mandate mediation is positive. The statutory quote above declares this to be so.
However, some bankruptcy judges are still saying, I’m told, that they have no legal authority to order disputing parties into mediation. Such an issue is currently percolating in a major bankruptcy district, I’m told.
This is a shocker. Judges order parties around all the time. Where do they get off being bashful about ordering parties into mediation?
Moreover, the federal statute language quoted above explicitly authorizes a district court judge to “require the use” of mediation—and each bankruptcy judge is a “unit” of the district court (see 28 U.S.C. § 151).
Additionally, mediations mandated by court order or court rule are common, if not ubiquitous, across a wide swath of state and federal courts throughout these United States—and have been for a long time. Mandated mediations are well received, are viewed positively, and aren’t going away.
Outdated and Outworn
I’m sorry to say this, but the no-authority position is outdated and outworn. It’s sort of like that person who refuses to use emails and text messaging. It sends a message that the judge lacks a flexibility and practicality of judgment that’s needed to make a complicated bankruptcy work.
“Avoid us, if you can,” is the subliminal message communicated by such a position.
And here’s guessing that lawyers are not lining up to file cases (when choices are available) in the bankruptcy district where this issue is percolating. It’s not that the mediation position, by itself, makes cases stay away. But such a position is symptomatic of a stubbornness and bent toward doctrinaire inflexibility that debtor attorneys tend to avoid, when they can.
The no-authority position, for mandating mediation, is a tired and long-ago defeated doctrine. And the defeat comes from a Federal statute, no less.
The remaining vestiges of “no authority to mandate mediation” need to admit defeat—and move on to issues that remain significant.
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