On Bankruptcy and Mediation
By: Donald L. Swanson We “sought to determine whether the reasons for mediator success are the same for all successful mediators, or whether different mediators succeed for different reasons.” Prof. Stephen B. Goldberg and Margaret L. Shaw in a 2008 report titled, “The Secrets of Successful (and Unsuccessful) Mediators.” The study: In their study, Prof.... Continue Reading →
By Donald L. Swanson England and Wales have a Civil Justice Council that, in 2016, formed an ADR Working Group to "review the ways in which" mediation is "encouraged and positioned within the civil justice system." In October, 2017, the Working Group issued its "Interim Report." Low Value Cases and Litigants Without Means One focus of... Continue Reading →
By: Donald L. Swanson I have a new LinkedIn friend, Mark Winters from the U.K., who’s developed a mediation practice within an unusual context. And he’s making it work. Since the practice arose from his own creativity and out of unusual circumstances, he’s unbounded by common norms and can do creative things. One creativity is this:... Continue Reading →
By Donald L. Swanson On June 12, 2017, the American Bar Association’s Section of Dispute Resolution published its “Report of the Task Force on Research on Mediator Techniques.” Notably, this report makes no reference to any research on bankruptcy mediation — not even a single study. The following article consists of four parts: --Summary of the... Continue Reading →
By: Donald L. Swanson We explore “the ways in which” unsuccessful mediators “failed to satisfy” the expectations of their mediating parties. Prof. Stephen B. Goldberg and Margaret L. Shaw in a 2008 report titled, “The Secrets of Successful (and Unsuccessful) Mediators.” In the “unsuccessful mediators” portion of their study, Prof. Goldberg and Ms. Shaw follow-up... Continue Reading →
By: Donald L. Swanson If there’s anything the history of mediation tells us, it’s this: --We’ve gotta trust the process. Here’s an example, that’s happening right now [in June 2018], of how a failure to trust the mediation process creates issues: In re Las Cruces Country Club, Inc., Case Nos. 16-12947 & 16-12947-j7 (Bankry., D. New... Continue Reading →
By: Donald L Swanson Voluntary mediation programs are often underutilized. This is an undeniable problem. One source of the problem is ignorance of mediation’s availability. We now have empirical proof that this is so. Ignorance is Not Bliss Prof. Donna Shestowsky [Footnote 1] conducted an empirical study titled, “When Ignorance is Not Bliss” [Footnote 2]. Her... Continue Reading →
By: Donald L. Swanson “a statement about a single asset can be a ‘statement respecting the debtor’s financial condition’ under §523(a)(2) of the Bankruptcy Code.” U.S. Supreme Court, Lamar, Archer & Cofrin, LLP v. Appling, Case No. 16-1215, June 4, 2018. One of the frequently-mediated types of disputes in bankruptcy is nondischargeability under 11 U.S.C. §... Continue Reading →
By: Donald L. Swanson Finding from an empirical study: litigants "have great enthusiasm" for participating directly in settlement negotiations and have little enthusiasm for negotiations involving “only the attorneys.” --Prof. Donna Shestowsky in, “Research Report: How Litigants Evaluate Legal Procedures at the Start of their Cases,” 50 Court Review 126 (2014). Common Negotiation Practice I started... Continue Reading →
By Donald L. Swanson “The purpose of the unclean hands doctrine is not to protect the defendant – it is to protect the court from becoming an aider and abettor of iniquity.” Baek v. Halvorson (In re Halvorson), 581 B.R. 610, 637 (Bankry.C.D.Cal. 2018) Never do this: sabotage a court-ordered mediation. The Baek v. Halverson case shows... Continue Reading →
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