An Early History of Bankruptcy Statutes and Economic Conditions in the U.S.: 1776 to 1978

By: Donald L. Swanson This article is a two-centuries history of Federal bankruptcy laws and economic conditions in the United States: from the Declaration of Independence in 1776 through the enactment of the current Bankruptcy Code in 1978. The Late 1700s In 1776, at the signing of the Declaration of Independence, thirteen colonies along the... Continue Reading →

An Example of Mediation Success in Hostile and Difficult Circumstances (City of San Bernardino Bankruptcy)

By Donald L. Swanson Timeline for a Plan Confirmation Dispute November 11:  Creditor requests an order requiring mediation November 14 (a.m.):  Debtor objects to request for mediation order November 14 (p.m.):  Court orders mediation December 6:  Debtor and creditor reach a settlement agreement February 7:  Debtor’s bankruptcy plan is confirmed This timeline is from a... Continue Reading →

A “Compelling Reason” for Mandating Mediation: to Advocate for its Use

By:  Donald L. Swanson “Studies show that parties who have entered mediation reluctantly still benefited from the process even though their participation was not voluntary.” D. Quek, Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program, Cardozo Journal of Conflict Resolution, Vol 11:479, at 483 (Spring 2010). Dorcas Quek is arguing... Continue Reading →

Mediating Parties on Their Mediators: Handing Out Reviews

By:  Donald L. Swanson What do mediating parties say about their mediators? That’s what Prof. Stephen B. Goldberg and Margaret L. Shaw wanted to know. So, they do a study and report on it back in 2008, as follow-up to a prior study.  And the mediating parties are more-than-happy to hand out reviews. Prior Study... Continue Reading →

Private Mediators: A Solution to Budget Pressures on Circuit Court Mediation Programs

By: Donald L. Swanson The U.S. Circuit Courts of Appeals have, for many years, administered their own mediation programs for civil cases.  The administrators and mediators in such programs are, typically, Federal employees. Such mediation programs are also characterized, typically, by the following: --mandatory referral of cases to mediation with no-extra-charge for mediator services --mediation... Continue Reading →

Thirty Experienced Mediators Reveal the Secrets of Their Success

By:  Donald L. Swanson Prof. Stephen G. Goldberg surveyed 30 experienced and successful mediators: 28 had mediated at “least 100 disputes,” and 2 had mediated “more than 50 but less than 100.” He wanted to know “how they accounted for their successes.” Prof. Goldberg reports his survey findings in, “Mediators Reveal Their Essential Techniques for... Continue Reading →

How Mandatory Mediation Succeeds: Seven Illustrations

By: Donald L. Swanson “Mandatory mediation” is a self-explanatory term.  It means this: –Disputing parties are required by court order or rule of law to participate in a mediation session. Mandatory mediation is a common tool for resolving disputes.  However, a reticence still exists, in much of the bankruptcy world, toward mandatory mediation.  The sources... Continue Reading →

“Hallway Mediation” for Multi-Party Disputes that are Stuck and Going Nowhere

"Hallway Mediation" is this: Putting multi-party disputants into a room to talk about their disputes, with the mediator orchestrating (or maybe it's refereeing) the event. I call it "Hallway Mediation" because that's where I first saw it happen and learned to do it: in the hallways outside the Bankruptcy Courtrooms in Omaha, Lincoln and North... Continue Reading →

Micromanaging the Mediation Process

  By: Donald L. Swanson In the case of In re Sabine Oil & Gas Corp., Case No. 15-11835 (Bankry. S.D.N.Y.), the bankruptcy judge authorizes and terminates two separate mediation efforts by the following orders: --January 5, 2016 – “Order Selecting Mediator and Governing Mediation Procedures” (Doc. 669). --May 2, 2016 – “Order Terminating STN... Continue Reading →

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