The progress of bankruptcy mediation is nearly-always upward: toward expanding the use of local mediation rules.
Four Examples of How Mediation Programs Develop and Grow
When the Work of Mediation Extends Beyond a Settlement
The Uschold v NSMG opinion provides another illustration of the post-settlement work that mediation can accomplish when a court must weigh-in on the merits of a mediated agreement.
Mediation Can (And Must) Embrace Social Distancing
Mediation must adapt now and embrace the distancing.
How An Official Committee Member Breaches Fiduciary Duties–And Pays A Price
By: Donald L Swanson Defendant “seriously breached her fiduciary duties” as a member of the Official Committee of Unsecured Creditors. Naylor v. Farrell (In re Farrell), 610 B.R. 317, 323 (Bkrtcy.C.D.Cal. 2019). Facts Here’s what happened: Defendant failed to play by the rules. Debtor filed a voluntary Chapter 11 bankruptcy. Debtor and and his spouse (the... Continue Reading →
Model Local Mediation Rules: A Service of Great Value
By: Donald L. Swanson Every once in a great while, a group of people perform a voluntary service of hard and diligent effort that produces a result of excellence and provides great value to others. That is precisely what a small group of people did in creating model local rules and supporting commentary on bankruptcy mediation.... Continue Reading →
Four Examples of How Local Customs Impede Mediation
Practitioners need to constantly evaluate their local mediation customs to assure that better practices are identified and incorporated.
Mandated Mediation: Authorized By Federal Statute
By: Donald L Swanson “Any district court that elects to require the use of alternative dispute resolution . . . may do so only with respect to mediation, . . . “ --From 28 U.S.C. § 652(a)—Alternative Dispute Resolution Act of 1998. The correct view on a Federal court's authority to mandate... Continue Reading →
How To Mandate A Voluntary Mediation System That Thrives: A Minnesota Example
By Donald L. Swanson Back in 1994, Minnesota state courts adopt a "mandatory consideration" rule for alternative dispute resolution ("ADR") possibilities. The rule works, back then, like this: Attorneys are required to, (i) consider using ADR in every civil case, (ii) discuss ADR with their client(s) and opposing counsel, and (iii) advise the court of their... Continue Reading →
Mediation in New Zealand — A Study on How It’s Done
By: Donald L. Swanson Sometimes it’s helpful, in understanding our own situation, to look at someone else’s. Mediation is a common tool for resolving commercial disputes in New Zealand. A 2017 study of mediation in New Zealand reveals how it's done there: “From Anecdote to Evidence: The New Zealand Commercial Mediation Market [Fn. 1]. General Findings... Continue Reading →
Are Emotional Arguments Helpful or Harmful in Mediating Commercial Disputes?
By: Donald L Swanson Settlement = Assessment of Risks + Math I made up this unsophisticated formula decades ago to explain what happens when a negotiated settlement occurs in a commercial dispute. What I’ve found, since then, is that the formula holds true in the vast majority of cases—even when emotions and tempers are on edge.... Continue Reading →
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