It’s hard to say what might happen in other contexts.
Filing Bankruptcy to Reject a Mediated Settlement Agreement: Will it Work?
How a Mediator’s Failure to Disclose a Prior Mediation Creates Problems
By: Donald L. Swanson Mediators are always concerned about conflicts of interest and appearances of conflict—and of making sure pertinent details are disclosed before accepting a mediation engagement. It’s not very often that things work the other way: that a mediator must disclose a mediation before accepting another professional engagement. But here’s a July 2018 appellate... Continue Reading →
The “Nature of a Dispute”: It’s Impact on Success or Failure of Mediation
By Donald L. Swanson The nature of a dispute “will have a significant impact on the success or failure of a mediation attempt,” and “unfavorable dispute characteristics are likely to defeat even the most adroit mediators.” Profs. Jacob Bercovitch and Jeffrey Langley, University of Canterbury, in The Nature of the Dispute and the Effectiveness of International... Continue Reading →
Was the Mediator Blind to Collusion During Mediation, Or Part of It?
By Donald L. Swanson “objectors essentially suggest that [the mediator] was too blind to see collusion at the tip of his nose during the mediation, or that [he] was part of the collusion. The court rejects these insulting, baseless arguments.” Speaks v. U.S. Tobacco Cooperative, Inc., 324 F.R.D. 112, 140 (E.D.N.C. 2018). The Facts On October... Continue Reading →
Early Mediation of Plan Confirmation Issues in Difficult Chapter 11 Cases
By Donald L. Swanson Bankruptcy courts “generally presume that good chapter 11 lawyers can and should negotiate without the help of an outside mediator.” However, some Chapter 11 cases are “so inherently complex” or “riddled” with “high levels of distrust” that “the presiding judge (or more rarely, the parties) views the appointment of a plan mediator... Continue Reading →
An Empirical Study of Bargaining in Mediation
By: Donald L. Swanson Confidentiality requirements are a difficulty for empirical studies of mediation. But a 2015 study gets around such difficulties and provides insights on details of mediation negotiations. The study is, “Inside the Caucus: An Empirical Analysis of Mediation from Within” [Fn. 1]. Here’s how confidentiality difficulties are minimized in the study: The study... Continue Reading →
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 →
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