On Bankruptcy and Mediation
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 →
It’s hard to say what might happen in other contexts.
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 →
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 →
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 →
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 →
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 →
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 →
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