On Bankruptcy and Mediation
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 --That’s according to the U.S. Ninth Circuit Court of Appeals, from an unpublished “Memorandum” decision in Milhouse v. Travelers Commercial Insurance Co., Case No. 13-56959, 13-57029 (9th Cir., Feb. 23, 2016).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 →
By: Donald L. Swanson “Leadership is a perpetual exercise in managing conflict.” --Morris Shechtman, 2003 A 2016 report on a mediation study evaluates and compares the effects on conflict of: (i) mediators who elicit solutions from parties in conflict, and (ii) mediators who offer opinions and solutions to the parties in conflict. Mediator Eliciting Solutions from Parties... Continue Reading →
By: Donald L. Swanson There is “no mutual meeting of the minds concerning the terms” of the mediated and Court-approved settlement agreement. Therefore, the agreement “is not an enforceable contract.” --In re Singh, Case No. 15-02159, Doc. 33 (Bankry. N.J., Oct. 5, 2016). Procedural Background Two adversary proceedings are filed in the Chapter 7 case... Continue Reading →
By: Donald L. Swanson The concepts of “failure” and “success” in a mediation typically refer to whether a settlement agreement is achieved during the mediation session. I’ve always felt uneasy about the use of such “failure” and “success” terms in this way. --I can’t quite put a finger on the source of unease. But it’s like... Continue Reading →
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