On Bankruptcy and Mediation
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 →
By: Donald L. Swanson Prof. Stephen G. Goldberg surveyed 30 experienced and successful mediators: 28 had mediated at “least 100 disputes,” and 2 had mediated “more than 50 but less than 100.” He wanted to know “how they accounted for their successes.” Prof. Goldberg reports his survey findings in, “Mediators Reveal Their Essential Techniques for... Continue Reading →
By: Donald L. Swanson “Mandatory mediation” is a self-explanatory term. It means this: –Disputing parties are required by court order or rule of law to participate in a mediation session. Mandatory mediation is a common tool for resolving disputes. However, a reticence still exists, in much of the bankruptcy world, toward mandatory mediation. The sources... Continue Reading →
"Hallway Mediation" is this: Putting multi-party disputants into a room to talk about their disputes, with the mediator orchestrating (or maybe it's refereeing) the event. I call it "Hallway Mediation" because that's where I first saw it happen and learned to do it: in the hallways outside the Bankruptcy Courtrooms in Omaha, Lincoln and North... Continue Reading →
By: Donald L. Swanson In the case of In re Sabine Oil & Gas Corp., Case No. 15-11835 (Bankry. S.D.N.Y.), the bankruptcy judge authorizes and terminates two separate mediation efforts by the following orders: --January 5, 2016 – “Order Selecting Mediator and Governing Mediation Procedures” (Doc. 669). --May 2, 2016 – “Order Terminating STN... Continue Reading →
By: Donald L. Swanson Eighty nine years ago (on November 7, 1928), the U.S. District Court for the Western District of South Carolina issues this ruling (see photo above): “Yellow Poplar Lumber Company, a Corporation, . . . is hereby declared and adjudged a bankrupt.” The Yellow Poplar bankruptcy has been administered, concluded and closed since... Continue Reading →
By: Donald L Swanson “[T]he parties should be prepared to engage in mediation before the Court fixes any evidentiary hearing.” Bankruptcy Judge Kevin J. Carey, In re AWI Delaware, Inc., Case No. 14-12092 (Bankry. Del., opinion dated 6/28/2017). Did you ever see a play in a sporting event that’s both imaginative and effective? And your reaction... Continue Reading →
By Donald L. Swanson “The mediator is a nice guy. But he needed to be tougher. He needed to pound harder on the other side . . . and on us . . . to get the case settled.” --A disappointed litigator explaining why a case did not settle in mediation. There are differing mediation styles.... Continue Reading →
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