On Bankruptcy and Mediation
By: Donald L. Swanson “Perhaps no idea has proven more controversial within evolutionary biology than the idea that evolution manifests progress.” --T. Shanahan (7/16/2012) The track-on-a-graph for mediation progress is, without question or controversy, upward! The formal and frequent use of mediation to resolve lawsuits in the U.S. dates back to experimental programs of the... Continue Reading →
By: Donald L. Swanson “[I]n settings like mediation, rhetorical questions may not be effective as a persuasion device, and under certain circumstances may even be counter-productive.” --Profs. James Stark & Douglas Frenkel, “Changing Minds: The Work of Meidators and Empirical Studies of Persuasion.” [All information below is from this 2013 article; and see Footnote below.]... Continue Reading →
By Donald L. Swanson “Mediation of consumer bankruptcy disputes has been very successful in our Bankruptcy Court.” --Steven W. Rhodes, Chief Bankruptcy Judge (Ret.) in Detroit. Consumer disputes in bankruptcy cases rarely mediate. This appears to be a stubborn reality just about everywhere. A Successful Consumer Bankruptcy Mediation Program So, when I hear the words “consumer... Continue Reading →
By Donald L. Swanson “the Court finds that mediation may be an efficient and effective mechanism . . . to consensually resolve or narrow the objections to the plan.” --Hon. Stuart M. Bernstein, U.S. Bankruptcy Judge, Southern District of New York, in Avaya Inc. mediation referral Order dated 9/13/2017 (emphasis added). We can all take a... Continue Reading →
By Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure. A new Rule is needed to cover two specific subjects: (i) mediation authorization, and (ii) mediation confidentiality. All other areas of mediation practice and procedure can be addressed in local rules, provided that the... Continue Reading →
By: Donald L. Swanson This article is a two-centuries history of Federal bankruptcy laws and economic conditions in the United States: from the Declaration of Independence in 1776 through the enactment of the current Bankruptcy Code in 1978. The Late 1700s In 1776, at the signing of the Declaration of Independence, thirteen colonies along the... Continue Reading →
By Donald L. Swanson Timeline for a Plan Confirmation Dispute November 11: Creditor requests an order requiring mediation November 14 (a.m.): Debtor objects to request for mediation order November 14 (p.m.): Court orders mediation December 6: Debtor and creditor reach a settlement agreement February 7: Debtor’s bankruptcy plan is confirmed This timeline is from a... Continue Reading →
By: Donald L. Swanson “Studies show that parties who have entered mediation reluctantly still benefited from the process even though their participation was not voluntary.” D. Quek, Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program, Cardozo Journal of Conflict Resolution, Vol 11:479, at 483 (Spring 2010). Dorcas Quek is arguing... Continue Reading →
By: Donald L. Swanson What do mediating parties say about their mediators? That’s what Prof. Stephen B. Goldberg and Margaret L. Shaw wanted to know. So, they do a study and report on it back in 2008, as follow-up to a prior study. And the mediating parties are more-than-happy to hand out reviews. Prior Study... Continue Reading →
By: Donald L. Swanson The U.S. Circuit Courts of Appeals have, for many years, administered their own mediation programs for civil cases. The administrators and mediators in such programs are, typically, Federal employees. Such mediation programs are also characterized, typically, by the following: --mandatory referral of cases to mediation with no-extra-charge for mediator services --mediation... Continue Reading →
MEDIATBANKRY 