Category: Bankruptcy Mediation

Clients Want To Be Involved in Settlement Negotiations: An Empirical Study’s Finding

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 →

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Heavy Penalties for Sabotaging a Court-Ordered Mediation: “Unclean Hands”

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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ADR Act of 1998: Defiance in Chicago’s Bankruptcy Court?

By:  Donald L. Swanson Here's the local rule (adopted in November 2017) allowing mediation in Chicago's Bankruptcy Court (emphasis added): RULE 9060-1 MEDIATION AND ARBITRATION Except to the extent required by the Bankruptcy Code or Federal Rules of Bankruptcy procedure, parties to an adversary proceeding or contested matter need not request court approval before pursuing... Continue Reading →

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Mediation Privilege in Full Bloom Under State Law

By: Donald L. Swanson The mediation privilege "provides for a broad screen of protection that renders confidential all communications . . . made as part of the mediation process." Grubaugh v. Blomo ex rel. County of Maricopa, 238 Ariz. 264, 359 P.3d 1008 (App. 2015). This Grubaugh v. Blomo case exemplifies a mediation privilege, created... Continue Reading →

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Priorities of Litigants in Mediation and Other Dispute Resolution Processes: A 2016 Study Report

By: Donald L. Swanson “[I]f research were to suggest that litigants want to be included in the resolution process but do not desire free verbal exchanges between the parties,” how should ADR providers respond? --Donna Shestowsky in, “How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study, 49 U.C. Davis L. Rev. 793, 797 (2016).... Continue Reading →

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Mediators as Persuaders?

  By: Donald L. Swanson For everyone who believes that mediators should facilitate and not evaluate, you’re gonna’ love this one – or maybe not! The study report is, “Changing Minds: The Work of Mediators and Empirical Studies of Persuasion,” 28 Ohio St. J. on Disp. Resol. 263 (2013).  It's prepared by these two professors: --James H.... Continue Reading →

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Mediation Confidentiality Protection: A “Very High Bar to Overcome”

By: Donald L. Swanson The legal opinion is In re Residential Capital, LLC, 536 B.R. 132 (Bankr. S.D.N.Y.  2015). The Facts, Including Mediation ResCap bought residential mortgage loans and sold those mortgage loans to others. When a mortgage loan crisis hits, a decade or so ago, many of these mortgage loans go bad.  Those who bought... Continue Reading →

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What Happens When a Mediated Settlement Falls Apart? Some Not-Good Things (In re Blue Dog)

By:  Donald L. Swanson Have you ever wondered what happens when disputing parties reach a mediated settlement agreement that requires further documentation—and then the settlement falls apart? What actually happens is often not-good. Here is an actual example, from a bankruptcy case, of what happens. The opinion is Blue Dog at #99 Inc. v. BP... Continue Reading →

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“Vital” Role of Mediator: Tony Blair and the Northern Ireland Peace Process

By Donald L. Swanson “The conflict won’t be resolved by the parties if left to themselves. If it were possible for them to resolve it on their own, they would have done so. Ergo, they need outside help.” Tony Blair, A Journey: My Political Life, 189, Alfred A. Knopf, 2010 Chapter 6 of Tony Blair’s memoir... Continue Reading →

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Authority for Mediation Mandates

By: Donald L. Swanson “Where does a bankruptcy judge get authority to order parties into mediation?” —Question at a discussion of bankruptcy mediation. This question comes from a skeptic. And it has little to do with the topic under discussion.  So, the others in the discussion hem and haw.  One finally says, “Section 105.” The questioner then... Continue Reading →

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