On Bankruptcy and Mediation
By: Donald L. Swanson 2018 is the twenty-year anniversary of the Alternative Dispute Resolution Act of 1998 (codified at 28 U.S.C. § 651 et seq., the “ADR Act”). Bankruptcy Courts – Lagging Adopters but Making Progress Bankruptcy courts, generally, have been lagging adopters of mediation. And a few bankruptcy districts remain stubbornly opposed to complying... Continue Reading →
By: Donald L. Swanson Mandatory mediation works. It results in case settlements. And it helps creates a culture for voluntary mediation. But the idea of a mandated mediation is repugnant to some because it violates a "voluntary" ideal. This is unfortunate. Evaluating Mediation The ultimate goal of all civil litigation is this: to resolve disputes under... Continue Reading →
By: Donald L. Swanson Back in the 1970s, Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals established an experimental mediation program called Civil Appeals Management Plan (“CAMP”) to deal with burgeoning caseloads. 1970s One CAMP feature, implemented for experiment and testing purposes, is the random selection of cases for mandatory mediation. ... Continue Reading →
By: Donald L. Swanson 2018 marks the twenty-year anniversary of the Alternative Dispute Resolution Act of 1998 [codified at 28 U.S.C. § 651 et seq., the "ADR Act"]. Preamble The preamble to the ADR Act contains these findings on mediation: --“mediation . . . may have potential to reduce the large backlog of cases now... Continue Reading →
By: Donald L Swanson When ABI’s Commission to Study the Reform of Chapter 11 issued its Final Report in 2014, one creative approach it recommended is to authorize a new bankruptcy position: the "estate neutral." The Final Report says that chapter 11 "needs to offer tools to resolve a debtor’s financial distress." The estate neutral would... Continue Reading →
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 →
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