On Bankruptcy and Mediation
By: Donald L Swanson Historically, bankruptcy courts and bankruptcy professionals have been lagging adopters of mediation. They’ve been slow to utilize mediation for resolving bankruptcy disputes, and they’ve been slow to adopt local rules on mediation. Today, however, 76 (80.85%) of all 94 bankruptcy court districts have a local mediation rule of some type (see this... Continue Reading →
By: Donald L. Swanson Have you ever been in a multi-party mediation representing a small-player in the dispute. I don’t mean your party is “small”: I mean that your party’s position in the over-all dispute (while extremely important to the client) is viewed by others as a lower-tier issue. I have. And it’s a difficult situation:... Continue Reading →
By Donald L. Swanson Some time ago, I published an article titled, “Contingent Fee or Success Fee for Mediators: Why Not?” The punchline of the article was, in the words of Paul McCartney, “Let it be.” Responses to the fees issue in that article were strong and largely negative, as expected. So, I’d like to take... Continue Reading →
By: Donald L. Swanson Immeasurable harm has resulted from an inability to appreciate that opposing views can be reasonable and coherent. A major cause of such harm is this: partisans lose touch with the views of others and dismiss contrary perspectives as foolish or biased. These propositions are from the authors of a 2015 study [Fn.... Continue Reading →
By Donald L. Swanson Mediated settlement agreements in bankruptcy are subject to approval by the bankruptcy court after notice to interested persons. [Fn. 1] A Recent Case An entity named “Empower” took aggressive action in a recent bankruptcy case to prevent approval of settlements and a plan, all of which arose from extensive negotiation and mediation... Continue Reading →
By Donald L. Swanson “The concept of a mediator going outside of the role of just settling a dispute and soliciting money to help settle that dispute is unprecedented in the history of bankruptcy and in the history of mediation as far as I know.” --Judge Steven Rhodes, as quoted in “Detroit Resurrected: To Bankruptcy... Continue Reading →
By: Donald L. Swanson Bracketed bargaining and a mediator’s proposal are useful and effective mediation tools. Each has its own role and function—which do not overlap. These two tools are examined in a 2015 empirical study titled, “Inside the Caucus: An Empirical Analysis of Mediation from Within” [Fn. 1]. The study is based on 400 employment... Continue Reading →
By Donald L. Swanson “The mediators’ record of accomplishment in this case establishes but one plan, one agenda, one bias—to settle as much of the case as they can and to do so tirelessly and selflessly.” --Judge Steven Rhodes, responding to allegations of mediator bias, as quoted in “Detroit Resurrected: To Bankruptcy and Back,” by... Continue Reading →
By: Donald L Swanson “When writing a mediation statement . . . lawyers fly blind. Large providers . . . offer little substantive guidance . . . Mediators themselves often fail to give explicit instructions . . . Most [law] schools rarely, if ever, teach budding lawyers about this niche genre of legal writing.” Brian Farkas*... Continue Reading →
By: Donald L. Swanson Sanctions for misconduct in a lawsuit are, actually, rare. It takes some doing to get sanctioned. Here are two Federal Court cases where failures to attend mediation incur the sanctions wrath of the courts. Sanctions in the first case total $41,712.83, while sanctions in the second case are only $1,357.46. The forty thousand... Continue Reading →
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