On Bankruptcy and Mediation
By: Donald L Swanson "Each United States district court shall authorize . . . the use of alternative dispute resolution processes in all civil actions, including adversary proceedings in bankruptcy." --28 U.S.C. § 651. To date, many bankruptcy courts are still without local mediation rules, despite such statutory language. How can this be? An Explanation... Continue Reading →
By Donald L. Swanson Hypothetical: A City has been struggling for years to provide adequate services. Then, the City and its police officer are sued for violating the plaintiff’s civil rights. A jury verdict is for many-millions of dollars—an amount multiple times the City’s annual budget. Defendants appeal. Plaintiff starts executing on the judgement. So... Continue Reading →
By: Donald L. Swanson “It is not established whether Local Rule 84.9 [on mediation confidentiality] would resolve the FOIA question because local rules do not clearly fit within a recognized FOIA exemption.” --Judicial Watch, Inc. v. U.S. Dept. of Justice, 813 F.3d 380 (D.C. Cir. 2016). This quote comes at the end of a lengthy... Continue Reading →
By Donald L. Swanson United States statutes require the adoption of local bankruptcy rules for mediation and other alternative dispute resolution tools. Here’s how. Statutes A. The "Alternative Dispute Resolution Act of 1998" provides in part as follows (bold/italics added for emphasis): 28 U.S.C. Sec. 651: Authorization of alternative dispute resolution (b) AUTHORITY- Each... Continue Reading →
By Donald L. Swanson Detroit’s mediated settlements are “an extraordinary accomplishment in bankruptcy and an ideal model for future municipal debt restructurings.” --Judge Steven W. Rhodes, from Detroit Bankruptcy’s Plan Confirmation Ruling A new report “Who Pays for Police Misconduct in Bankrupt Cities” is the title for the report of a study, published on August... Continue Reading →
By: Donald L. Swanson When a mediating party and counsel say to the mediator: "Just give us your evaluation!" What they are actually saying is: "Just confirm that you agree with my side." --Prof. Elayne E. Greenberg of St. John's University School of Law This observation appears in the "Bankruptcy Mediation" book recently published by... Continue Reading →
By: Donald L. Swanson Two local municipal authorities in Ohio are not cooperating. So, a local judge orders them to mediate the dispute between them, according to this news report from The Athens Messenger. The Facts One municipality, a local school district, wants to connect a proposed wellness center into the sewer system of the... Continue Reading →
By Donald L. Swanson We've just finished adopting new local rules on mediation in Nebraska's Bankruptcy Court, back in 1911. And we are expecting that attorneys will promptly start utilizing these rules. We are wrong. An alleged Ponzi scheme case is going on when our rules are adopted, and the chapter 11 trustee files 117... Continue Reading →
By: Donald L. Swanson This is the third-of-three articles on In re Smith, 524 B.R. 689 (Bkrtcy.S.D.Tex. 2015). Sitting Judges as Mediators--for Comparison I've published an earlier article on sitting bankruptcy judges as mediators in bankruptcy cases titled, "What's the Fascination with Requesting an Unnamed 'Sitting Bankruptcy Judge' as Bankruptcy Mediator?" In response to that... Continue Reading →
By: Donald L. Swanson The time is here. We need a new mediation tool! We need to include mediation -- explicitly and by name -- in the Federal Rules of Bankruptcy Procedure. Mediation is already included in the Federal Rules of Civil Procedure for U.S. District Courts. And mediation has become a important tool for... Continue Reading →
MEDIATBANKRY 