Optimum Timing for Mediation: Early . . . but Not Too Early

By: Donald L. Swanson Mediation should occur "at some reasonable point,” (i) “before discovery is completed,” and (ii) after “critical motions have been decided.” --Suzanne J. Schmitz, A Critique of the Illinois Circuit Rules Concerning Court-Ordered Mediation, 36 Loy. U. Chi. L. J. 783 (2005). Early Mediation Referral Law Professor Suzanne J. Schmitz says that mediation... Continue Reading →

A False Assumption: Some Types of Cases are “Not Amenable” to Mediation

By: Donald L. Swanson The U.S. Sixth Circuit “moved to random selection” of cases for mediation because “cases that appeared to be amenable to mediation were not actually more likely to settle than any other case.” Sixth Circuit Appellate Blog, April 6, 2012. A False Assumption One of the early assumptions about mediation is that some... Continue Reading →

Four Characteristics of Successful Mediators — from a Study of Mediation in International Relations

By: Donald L. Swanson “Successful Mediation in International Relations” reports on a  study of 79 international disputes (of which 44 were mediated) occurring between 1945 and 1989. The study identifies multiple characteristics of successful mediators in the international realm.  As to each of such characteristics, the following question needs to be asked: --Does this characteristics... Continue Reading →

Bankruptcy Issues are Non-Partisan and A-Political — A Flip-Flopping Exception at U.S. Supreme Court

By: Donald L. Swanson Bankruptcy issues tend to be non-partisan and a-political. Political partisans find it hard to pick-a-side, let alone get worked-up, over such issues as adequate protection, executory contracts and absolute priority. That’s because no one likes bankruptcy, even though it’s a necessity. An Exception A historical exception, however, has been over the question... Continue Reading →

A Study on Effects of “Apology” on Plan Confirmation in Consumer Bankruptcies

By: Donald L. Swanson “Using a sample of U.S. bankruptcy judges,” this study “asks whether a bankrupt consumer improves her situation by apologizing for breaching her promises.” From a 2013 “Bankruptcy Apologies“ study by two professors from the University of Illinois College of Law [Fn. 1]. An “apology” can be a factor (often a decisive one)... Continue Reading →

Reflecting Feelings and Interests — A Mediation Study

By Donald L. Swanson A 2016 report on a mediation study looks at how a mediator reacts with participants.  Specifically, the study evaluates what happens when a mediator: --reflects back to participants what the participants themselves express --focuses on a participant's feelings/emotions --focuses on a participant's underlying interests. Findings When a mediator does such things, participants... Continue Reading →

Mediation Confidentiality at Second and Ninth Circuits: Stability v. Who Knows?

By: Donald L Swanson You’d expect, these days, that mediation confidentiality is enforced everywhere. But that expectation is wrong. Bankruptcy Hypothetical Let’s start with a bankruptcy hypothetical: Debtor is a small business in Chapter 11 and hopes to reorganize—not liquidate. Debtor reaches a mediated settlement with a large creditor, removing an obstacle to reorganization. Mediating parties... Continue Reading →

Special Settlement Problems When Defendant Claims Poverty or Non-Collectibility

By: Donald L. Swanson “I’d be happy to pay the million dollars I owe you. The problem is that I have only two of them.” --A defendant’s claim of poverty and non-collectibility in settlement negotiations. A defendant's poverty/non-collectibility claim creates an interesting dynamic in mediation and other negotiations. And that’s true whether the defendant is an... Continue Reading →

How a Judge Makes Mediation Work: Judicial Oversight in Bankruptcy

By Donald L. Swanson “Even if a plan emerged out of mediation that unfairly discriminated against financial creditors, it’s the court’s responsibility to block the deal.” -- Judge Steven Rhodes, as reported by Nathan Bomey in “Detroit Resurrected: to Bankruptcy and Back.” Judge Rhodes is defending his mediators in the City of Detroit bankruptcy against... Continue Reading →

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