Alternative Dispute Resolution Act of 1998: A Twenty-Year Anniversary and Impressive Results

By:  Donald L. Swanson 2018 marks the twenty-year anniversary of the Alternative Dispute Resolution Act of 1998 [codified at 28 U.S.C. § 651 et seq., the "ADR Act"]. Preamble The preamble to the ADR Act contains these findings on mediation: --“mediation . . . may have potential to reduce the large backlog of cases now... Continue Reading →

The “Estate Neutral” as an Expert Witness, a Mediator and a Financial Advisor

By: Donald L Swanson When ABI’s Commission to Study the Reform of Chapter 11 issued its Final Report in 2014, one creative approach it recommended is to authorize a new bankruptcy position: the "estate neutral." The Final Report says that chapter 11 "needs to offer tools to resolve a debtor’s financial distress." The estate neutral would... Continue Reading →

Evolutionary Progress of Mediation is Upward: Toward Greater, Earlier and Mandatory Use

By: Donald L. Swanson “Perhaps no idea has proven more controversial within evolutionary biology than the idea that evolution manifests progress.” --T. Shanahan (7/16/2012) The track-on-a-graph for mediation progress is, without question or controversy, upward! The formal and frequent use of mediation to resolve lawsuits in the U.S. dates back to experimental programs of the... Continue Reading →

Do Rhetorical Questions Diminish a Mediator’s Credibility?

By:  Donald L. Swanson “[I]n settings like mediation, rhetorical questions may not be effective as a persuasion device, and under certain circumstances may even be counter-productive.” --Profs. James Stark & Douglas Frenkel, “Changing Minds: The Work of Meidators and Empirical Studies of Persuasion.” [All information below is from this 2013 article; and see Footnote below.]... Continue Reading →

A Successful Consumer Mediation Program in Detroit’s Bankruptcy Court

By Donald L. Swanson “Mediation of consumer bankruptcy disputes has been very successful in our Bankruptcy Court.” --Steven W. Rhodes, Chief Bankruptcy Judge (Ret.) in Detroit. Consumer disputes in bankruptcy cases rarely mediate. This appears to be a stubborn reality just about everywhere. A Successful Consumer Bankruptcy Mediation Program So, when I hear the words “consumer... Continue Reading →

Setting Interim and Ultimate Goals for a Mediation Effort

By Donald L. Swanson “the Court finds that mediation may be an efficient and effective mechanism . . . to consensually resolve or narrow the objections to the plan.” --Hon. Stuart M. Bernstein, U.S. Bankruptcy Judge, Southern District of New York, in Avaya Inc. mediation referral Order dated 9/13/2017 (emphasis added). We can all take a... Continue Reading →

Four Decades of Rocking the Boat on Bankruptcy Court Authority: The U.S. Supreme Court

By: Donald L. Swanson The U.S. Supreme Court has, for four decades, been rocking the boat [that's Justice Blackmun's metaphor] on bankruptcy court authority. First, they almost kill the Code—coming within one vote of declaring the entire Bankruptcy Code unconstitutional. Then they limit and mess with it some more. And now, finally, it seems they are... Continue Reading →

A Federal Bankruptcy Rule is Needed for Mediation Authorization and Confidentiality: Four Reasons Why

  By Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure.  A new Rule is needed to cover two specific subjects: (i) mediation authorization, and (ii) mediation confidentiality. All other areas of mediation practice and procedure can be addressed in local rules, provided that the... Continue Reading →

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 →

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