On Bankruptcy and Mediation
By: Donald L. Swanson Here is a common experience in the bankruptcy courts (and other courts) where mediation is a new or little-used tool: Attorneys have been practicing for years in this court without using mediation. And mediation is slow to catch on. Here’s why: --Attorneys who practice in this court aren’t accustomed to using... Continue Reading →
By: Donald L. Swanson The only things I know about Judge (now Justice) Neil Gorsuch are from what I’ve read in two contexts: His rating by the American Bar Association’s Standing Committee on the Federal Judiciary, which voted unanimously to give its best possible rating to Judge Gorsuch as a Supreme Court nominee; and Five... Continue Reading →
By Donald L. Swanson “Puerto Rico’s federally appointed financial oversight board scheduled mediation in debt restructuring talks between the U.S. Territory’s general obligation bondholders and holders [of other debts] backed by sales tax revenue.” The mediation “will run from April 10-13 in New York.” --Reuters.com, March 31, 2017, at 11:09 a.m. An hour later, March... Continue Reading →
By: Donald L. Swanson “We are not final because we are infallible, but we are infallible only because we are final.” --From concurring opinion of U.S. Supreme Court Justice Robert H. Jackson, in Brown v. Allen, 344 U.S. 443 (1953), on role and function of the U.S. Supreme Court. Structured dismissals are [correction: were] a... Continue Reading →
By Donald L. Swanson California has been studying this question: should a malpractice exception be added to California's mediation confidentiality laws? If, for example, a mediating party sues his/her/its attorney for malpractice committed during a mediation session, should statements made during the mediation session be admissible evidence in the malpractice lawsuit? Or should such statements... Continue Reading →
By: Donald L. Swanson “I think it is unwise for the Court to decide” this issue because: (i) “Experience shows that we would greatly benefit from the view of additional courts of appeals on this question,” and (ii) “We also would have benefited from full, adversarial briefing.” --Justice Clarence Thomas, dissenting in Czyzewski v. Jevic... Continue Reading →
By: Donald L. Swanson The case is MF Global Holdings LTD. v. PricewaterhouseCoopers LLP, Case No. 14-cv-2197 in the U.S. District Court for the Southern District of New York. Hon. Victor Marrero is the presiding Judge. This case concludes by settlement, last week, in the middle of trial. Claims Asserted Plaintiff asserts in this lawsuit... Continue Reading →
By: Donald L. Swanson Can mediation confidentiality be waived? The answer is, “Yes.” --That’s according to the U.S. Ninth Circuit Court of Appeals, from an unpublished “Memorandum” decision in Milhouse v. Travelers Commercial Insurance Co., Case No. 13-56959, 13-57029 (9th Cir., Feb. 23, 2016). Facts The Milhouse residence, located in California, had been destroyed in... Continue Reading →
By: Donald L. Swanson A Staffing/Caseload Problem We have a staffing and caseload problem that's waiting-to-happen in the bankruptcy world: The number of bankruptcy filings is down, systemwide, and has been for several years. And budget pressures are on the increase. As a result, bankruptcy vacancies (e.g., for judgeships, clerkships, panel trustee positions, clerk of... Continue Reading →
By Donald L. Swanson A mediator is, by definition, a "neutral." Neutrality seems to be a straight-forward concept: it means not-taking-sides. But not-taking-sides is, apparently, not all that simple. Check out this excellent article and this fine series of essays on the subject. Efforts to define or explain "neutrality" often get bogged down. Sometimes, new... Continue Reading →
