Arbitration of Bankruptcy Disputes: The Need for a “Uniformity” Rationale Under U.S. Constitution

By:  Donald L. Swanson The case is Thomas v Midland Funding LLC, A.P. No. 17-05010 in the Bankruptcy Court for the Western District of Virginia. On appeal, it’s Civil Action No. 5:18-cv-00128 in the U.S. District Court. Odd Facts The facts of the case are a kind of, “Who knew this happens?” Debtor is in... Continue Reading →

Striking the Answer and Entering Default: A Sanction for Blowing Off Mediation

By: Donald L. Swanson The case is Trujillo v. Tak (In re Tak), Case No. 18-ap-01217 (Bankry. C.D. Cal.). The Case Celia Trujillo sues Debtor in Superior Court of the State of California, County of Los Angeles, at Case No. BC672613, for sexual harassment and discrimination. In response, Debtor files Chapter 7 bankruptcy. Then, Celia Trujillo... Continue Reading →

Mediating a Feud: The Problem of Envisioning Future Effects

By Donald L. Swanson Feuding parties are blinded by their feud. And they cannot envision the future of their feud with accuracy. An Ancient Illustration from London A recent essay [Fn. 1] provides details of a multi-year feud between London-area grocers, back in the early 1600s. That feud involved two lawsuits, a criminal complaint, and extensive... Continue Reading →

Relativity: Defining “Success” for Multi-Party Mediation in Chapter 11

By: Donald L. Swanson “I stand at the window of a railway carriage which is traveling uniformly, and drop a stone on the embankment . . . I see the stone descend a straight line. A pedestrian who observes the misdeed from the footpath notices that the stone falls to the earth in a parabolic curve.... Continue Reading →

“Voluntary” Ideal Leads to Under-Utilization of Court-Connected Mediation Programs: An Experiment Solution

By: Donald L Swanson In many courts, these days, mediation reigns supreme. This is so-much-so that, court reporters complain about mediation cutting into their business; judges complain about cases settling in mediation and no one trying cases any more; and attorneys in casual conversations commonly talk about preparations for and successes in mediation, not trial. Such... Continue Reading →

Getting Mediators Approved and Paid in Bankruptcy

By Donald L. Swanson Every now and then a mediator gets stiffed on fees.  It doesn’t happen often.  But it happens.  And it’s always a shame. Mediators of bankruptcy disputes have an additional payment-related hurdle they must navigate.  The hurdle is this: --Advance court approval is required for getting paid from bankruptcy funds. Statutory Requirements... Continue Reading →

Mediating Business Disputes: Caucus Format is Unfortunate

By: Donald L. Swanson Should a mediation be in joint session or caucus? For mediating business disputes, joint session is the better approach—by far. I’ll try to explain. Two Observations Here are two observation about the joint session vs. caucus method for mediating business disputes. 1. People with little-or-no experience in mediation tend to expect a mediation... Continue Reading →

A Mediator/Arbitrator Malpractice Lawsuit: Haven’t Seen This Before!

By: Donald L. Swanson This doesn’t happen every day: A mediator’s engagement agreement authorizes the mediator to arbitrate disputes about any settlement agreement the parties might reach in mediation; The mediation achieves a settlement agreement, but a dispute arises over an alleged mistake in the agreement document; and The mediator attempts to arbitrate the dispute and... Continue Reading →

Bankruptcy Laws for Puerto Rico: A Series of Unfortunate Technicalities and Screw-ups

By: Donald L. Swanson The U.S. Supreme Court has agreed to decide the constitutionality of the bankruptcy-type system under which Puerto Rico is operating.  The case is Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (Case No. 18-475). Sounds ominous . . . and monumental . . . , right? The reality... Continue Reading →

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