On Bankruptcy and Mediation
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 →
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 →
By: Donald L. Swanson “Kick the can down the road” is an adage that means this: “to delay or avoid dealing with a problem.” Before Bankruptcy That’s what family businesses in financial stress do, outside of bankruptcy. They deal with unhappy creditors by kicking the can down the road. Here’s why: cash resources are tight, and... Continue Reading →
By: Donald L. Swanson Making an affirmative choice among alternatives is one way to make a decision. Rejecting an alternative is another way. Research Results Research shows that these two differing ways of making decisions often produce differing results. That’s because people “adopt different selection criteria” and “allocate different weights and choices” in these two ways... Continue Reading →
By Donald L. Swanson “Soloman’s Paradox” = “we tend to reason more wisely about other people’s problems than our very own” (aka, “Plenty of wisdom for others; but not for oneself”). [Fn. 1] “King Solomon, the third leader of the Jewish Kingdom, is thought of as a sage and a man of great wisdom. People traveled... Continue Reading →
By: Donald L. Swanson Mediation has become the go-to process for dealing with large-scale sexual abuse claims in bankruptcy. The latest example is the Chapter 11 case of In re USA Gymnastics, filed on December 5, 2018, at Case No. 18-09108, in the Southern Indiana Bankruptcy Court. Background USA Gymnastics is where Larry Nassar volunteered as... Continue Reading →
By: Donald L Swanson What is professional “bad faith” in mediation? I’m not talking, here, about sanctionable conduct. I’m talking, instead, about things like professional courtesy and civility—a standard of behavior that one professional owes to another to make the professional system work efficiently and effectively. The following are two hypothetical examples of mediation strategies and... Continue Reading →
By: Donald L. Swanson Consumers often delegate the responsibility for making difficult decisions to others. This is the finding of a recent study by two college professors [Fn. 1]. Avoiding Regret v. Avoiding Disappointment The study distinguishes between a consumer’s desire to avoid “regret” and to avoid “disappointment.” While both regret and disappointment “capture a person’s... Continue Reading →
https://m.youtube.com/watch?v=nrIPxlFzDi0 By: Donald L Swanson “Satisfaction” of parties to a mediation is difficult to describe, let alone measure. But a recent study published by the Harvard Negotiation Law Review [Fn. 1] examines the “satisfaction” of mediating parties. It identifies two items that have a significant effect on a party's “satisfaction”: (i) timing of referral, and (ii)... Continue Reading →
By: Donald L. Swanson “[W]e are unaware of any authority suggesting that a district court may not rule on a pending motion for summary judgment while the parties may be attempting to settle the matter outside of court.” --Third Circuit Court of Appeals in Myrick v. Discover Bank, Case No. 16-1966, fn. 6 (10/7/2016). The... Continue Reading →
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