When is a Dispute Ripe for Mediation? (In re Diocese of Buffalo)

Are they ripe? (Photo by Marilyn Swanson) By: Donald L Swanson The timing of mediation efforts in litigation is important (and can be tricky).  Studies show that early is better than late.  But in early mediation efforts, a tension exists between, (i) acting promptly, and (ii) assuring that parties have adequate information to make informed decisions.... Continue Reading →

Why Early Mediation is More Effective in Bankruptcy Reorganization Disputes than in Regular Commercial Litigation

By: Donald L. Swanson “’Early’ (mediation) is good and usually best”; but “Lawyers are not easily persuaded away from the view that they ‘need more info’ before they engage settlement discussions in mediation”; and “in many cases, they may be right.” --Comment by a mediation professional on a discussion board. I agree with this comment—100%—for regular... Continue Reading →

Mediation: Sometimes A Judge Must Rule Before Parties Will Settle (In re C2R)

Waiting a tad-too-long? By: Donald L. Swanson It happens in the Chapter 11 case of In re C2R Global Manufacturing, Inc., (Case No. 18-30182 in Eastern Wisconsin Bankruptcy Court): the judge must rule before the parties will settle. That may seem a tad-too-late. But it happens, and In re C2R is Exhibit A. Disputes C2R Global... Continue Reading →

Subchapter V Trustee Employing An Attorney? (In re Penland)

An attorney By: Donald L Swanson The Bankruptcy Court opinion is in In re Penland Heating And Air Conditioning, Inc., Case No. 20-01795 (Bankry.E.D.N.Car.)(decided June 11, 2020).  Issue The In re Penland issue is this: should a Subchapter V Trustee be allowed to hire an attorney, as common practice, at the beginning of a Subchapter V... Continue Reading →

Mediation Continuums: How They Overlap

By: Donald L. Swanson “Joint Session <———> Caucus Only” "Fact Disputes <———> Law Disputes"  A continuum? (Photo by Marilyn Swanson) These are two sets of mediation continuums. Here’s a theory I've heard on how the “joint session” to “caucus only” continuum and the "fact disputes" to "law disputes" continuum overlap in commercial cases.  I'd like to... Continue Reading →

The Zoomification of Litigation — It’s Happening!

By: Donald L Swanson Times have changed -- an 1800s courtroom Decades ago, there was one way to litigate: by warm-body witnesses, attorneys, judges, etc., present in the courtroom. It’s not like anyone decided, “Hey . . . in-person is the best way.”  It’s simply that, there was no other way. Technology Advances But electronic communications... Continue Reading →

The First-Ever Formal Mediation in Federal Court?

Judge Irving Kaufman By: Donald L. Swanson Judge Irving Kaufman is famous for many things, such as presiding over the Rosenberg espionage trial and rejecting the U.S. government’s attempt to deport John Lennon to the United Kingdom. But Judge Kaufman’s greatest legacy may be for his role in developing mediation as a primary dispute resolution... Continue Reading →

ADR Act of 1998: A Reflection on Its Effectiveness and Shortfalls

By: Donald L Swanson October 31, 2018, was the 20th anniversary of the Alternative Dispute Resolution Act of 1998 (the “ADR Act”). [Fn. 1] The ADR Act has had a profound impact on the practice of law throughout the federal court system. However, it also has shortfalls that are yet to be rectified. A Mediation Model:... Continue Reading →

A Survey of Professionals on Mediation of International Commercial Disputes

By Donald L. Swanson On December 20, 2018, the United Nations General Assembly adopted a United Nations Convention on International Settlement Agreements Resulting from Mediation, and 52 countries have signed that Convention.  It deals with enforcing mediated settlements of international commercial disputes. A Survey Leading up to adopting the Convention, studies were made to determine the... Continue Reading →

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