Ignorance of Mediation Program Availability “Is Not Bliss”: A New Empirical Study

By: Donald L Swanson Voluntary mediation programs are often underutilized. This is an undeniable problem. One source of the problem is ignorance of mediation’s availability. We now have empirical proof that this is so. Ignorance is Not Bliss Prof. Donna Shestowsky [Footnote 1] conducted an empirical study titled, “When Ignorance is Not Bliss” [Footnote 2].  Her... Continue Reading →

Defining and Illustrating “Statement Respecting Financial Condition” for Nondischargeability: U.S. Supreme Court (Appling Case)

By: Donald L. Swanson “a statement about a single asset can be a ‘statement respecting the debtor’s financial condition’ under §523(a)(2) of the Bankruptcy Code.” U.S. Supreme Court, Lamar, Archer & Cofrin, LLP v. Appling, Case No. 16-1215, June 4, 2018. One of the frequently-mediated types of disputes in bankruptcy is nondischargeability under 11 U.S.C. §... Continue Reading →

Clients Want To Be Involved in Settlement Negotiations: An Empirical Study’s Finding

By: Donald L. Swanson Finding from an empirical study: litigants "have great enthusiasm" for participating directly in settlement negotiations and have little enthusiasm for negotiations involving “only the attorneys.” --Prof. Donna Shestowsky in, “Research Report: How Litigants Evaluate Legal Procedures at the Start of their Cases,” 50 Court Review 126 (2014). Common Negotiation Practice I started... Continue Reading →

Heavy Penalties for Sabotaging a Court-Ordered Mediation: “Unclean Hands”

By Donald L. Swanson “The purpose of the unclean hands doctrine is not to protect the defendant – it is to protect the court from becoming an aider and abettor of iniquity.”  Baek v. Halvorson (In re Halvorson), 581 B.R. 610, 637 (Bankry.C.D.Cal. 2018) Never do this: sabotage a court-ordered mediation. The Baek v. Halverson case shows... Continue Reading →

ADR Act of 1998: Defiance in Chicago’s Bankruptcy Court?

By:  Donald L. Swanson Here's the local rule (adopted in November 2017) allowing mediation in Chicago's Bankruptcy Court (emphasis added): RULE 9060-1 MEDIATION AND ARBITRATION Except to the extent required by the Bankruptcy Code or Federal Rules of Bankruptcy procedure, parties to an adversary proceeding or contested matter need not request court approval before pursuing... Continue Reading →

Mediation Privilege in Full Bloom Under State Law

By: Donald L. Swanson The mediation privilege "provides for a broad screen of protection that renders confidential all communications . . . made as part of the mediation process." Grubaugh v. Blomo ex rel. County of Maricopa, 238 Ariz. 264, 359 P.3d 1008 (App. 2015). This Grubaugh v. Blomo case exemplifies a mediation privilege, created... Continue Reading →

Priorities of Litigants in Mediation and Other Dispute Resolution Processes: A 2016 Study Report

By: Donald L. Swanson “[I]f research were to suggest that litigants want to be included in the resolution process but do not desire free verbal exchanges between the parties,” how should ADR providers respond? --Donna Shestowsky in, “How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study, 49 U.C. Davis L. Rev. 793, 797 (2016).... Continue Reading →

Mediators as Persuaders?

  By: Donald L. Swanson For everyone who believes that mediators should facilitate and not evaluate, you’re gonna’ love this one – or maybe not! The study report is, “Changing Minds: The Work of Mediators and Empirical Studies of Persuasion,” 28 Ohio St. J. on Disp. Resol. 263 (2013).  It's prepared by these two professors: --James H.... Continue Reading →

Mediation Confidentiality Protection: A “Very High Bar to Overcome”

By: Donald L. Swanson The legal opinion is In re Residential Capital, LLC, 536 B.R. 132 (Bankr. S.D.N.Y.  2015). The Facts, Including Mediation ResCap bought residential mortgage loans and sold those mortgage loans to others. When a mortgage loan crisis hits, a decade or so ago, many of these mortgage loans go bad.  Those who bought... Continue Reading →

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