On Bankruptcy and Mediation
By: Donald L. Swanson Let’s juxtapose these two quotes: “Congress must act now to defuse the student loan debt bomb.” --From Jim Haller, Opinion Contributor, The Hill, February 27, 2017. “Northwestern’s [financial aid] options make higher education more accessible.” --From Northwestern University's (Evanston, IL) “Tuition and Aid” online page. The Northwestern quote above uses the... Continue Reading →
By Donald L. Swanson “The mediator is a nice guy. But he needed to be tougher. He needed to pound harder on the other side . . . and on us . . . to get the case settled.” --A disappointed litigator explaining why a case did not settle in mediation. There are differing mediation styles.... Continue Reading →
By Donald L. Swanson It's not very often that we get to see what's going on with businesses and bankruptcies in Russia. But we now get a peek. It comes from a lawsuit and a bankruptcy filed in the Southern District of New York involving a granite production business in Russia. Business Developments in Russia Sergei... Continue Reading →
By: Donald L. Swanson "For all of those reasons I think that the failure to engage in mediation or any other serious ADR was unreasonable." --Judge Waksman, QC, in the High Court of Justice, Chancery Division, Manchester District Registry, England, Feb. 3, 2014. Perhaps we can learn about mediation from other legal systems. Here’s an... Continue Reading →
By Donald L. Swanson "We must decide whether Puerto Rico is a “State” for purposes of this [bankruptcy] pre-emption provision. We hold that it is." --Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, U.S. Supreme Court Case No. 15-233 (Decided June 13, 2016). The Bankruptcy Code definition of "State" is contained in Sec. 101(52) and... Continue Reading →
By: Donald L. Swanson A typical lawsuit mediation involves a passive mediator dealing with litigation attorneys: --Passive mediators must wait to be engaged and then assist with disputes the parties identify; and --Litigation attorneys are fighting the case in court—they are active belligerents. So . . . the practical effect, in a typical lawsuit mediation, is... Continue Reading →
By: Donald L. Swanson Mediators and Other Special Masters in District Courts -- Rule 53 “Special Masters” can be appointed by U.S. District Courts to handle special circumstances, under Fed.R.Civ.P. 53. One type of special master under Rule 53 is a “Settlement Master” (aka “Mediator”). Special masters are used by District Courts, typically, in large... Continue Reading →
By: Donald L. Swanson The California Law Revision Commission is studying mediation confidentiality in the legal malpractice context. Its Memorandum dated May 27, 2016, discusses ways to address confidentiality concerns. Minnesota's "Hip Pocket" Example An unusual “type of approach” it identifies is Minnesota’s “hip pocket” service rule. Under this rule, the statute of limitations is... Continue Reading →
By Donald L. Swanson Have you ever wondered about the nature and history of Puerto Rico's relationship with the United States of America? After all, it’s located 1,600 miles beyond Miami and is separated from the U.S. mainland by the likes of Cuba, Bahamas, Turks and Caicos Islands, Haiti and Dominican Republic. So . .... Continue Reading →
By: Donald L Swanson The Bankruptcy Court opinion is In re Brizinova and Soshkin, 565 B.R. 488 (Bkrtcy. E.D.N.Y. 2017). The Trustee sues the debtors to recover assets for the bankruptcy estate. The Debtors file a motion to dismiss, in which their attorney, (i) makes statements the Trustee finds objectionable, and (ii) references information from a... Continue Reading →
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