On Bankruptcy and Mediation
By Donald L. Swanson It’s January 2011. I’m sitting in a conference room at the Federal Courthouse in Omaha (the building is new and beautiful; you should visit it sometime). It’s a “brown-bag luncheon” for the local bankruptcy bench and bar. We’re on the last agenda item (open forum), and the judge asks for input.... Continue Reading →
By: Donald L. Swanson The first of my three articles on In re Smith, 524 B.R. 689 (Bkrtcy.S.D.Tex. 2015), quotes the Judge’s arguments for opposing mediation. Some of those arguments seem off-base, as I noted in Part 1. Mediator as Professional However, the Judge addresses another issue in that case on which his ruling is more... Continue Reading →
By: Donald L. Swanson Michael Mullin is an Omaha attorney. He is a mediator and has been mediating lawsuits for many years. Mike mediates cases all-day, every-day -- literally: including Saturday's, Sunday's and holidays, as needed. Mike became active as a mediator when mediation began taking hold in the Omaha area back in the mid-1990's.... Continue Reading →
By Donald L. Swanson Not everyone is a fan of mediation. And one Texas Bankruptcy Judge is emphatically opposed. Judicial Actions Here is an unofficial transcription (from the official recording) of an in-court exchange occurring on September 3, 2014, as reported on this webpage: “The Court: . . . Is the Trustee eventually going to... Continue Reading →
By: Donald L. Swanson Mediators and mediating parties beware! The Facts The mediation of a contentious commercial case concludes without an agreement. But the mediator keeps trying. The mediator sends a post-mediation email to counsel for “Jonathan” conveying a proposal, which includes these statements from the other party: --“Jonathan knows the extent of his wrongdoings... Continue Reading →
By: Donald L. Swanson In Omaha, Nebraska, where I live and practice, mediation plays a central role in civil litigation outside the Bankruptcy Court. And it's playing an increasing role in Bankruptcy Court as well—but that's a story for another day. Mediation is a vital part of the civil litigation culture around here. And it's... Continue Reading →
By: Donald L. Swanson Conventional thinking (as I understand it) is that mediators should not have a role in preparing a settlement-terms document that concludes a successful mediation. I'm suggesting that a mediator can/should have a limited-and-neutral role in preparing such a document. Here's why. Some Ancient History Its 25 years ago -- or more.... Continue Reading →
By: Donald L. Swanson I’m scanning a news article earlier this week. The term “militant open-mindedness” catches my eye. My immediate reaction is excitement: --“Oh great! This will provide a lesson and analogy for mediation!” --After all, “open-mindedness” is “a receptiveness to new ideas” and a belief that “others should be free to express their... Continue Reading →
By: Donald L. Swanson One reason given by the Chicago Bankruptcy Court for the recent revocation of its Local Mediation Rules is this: --Several Judges in the Chicago Bankruptcy Court have agreed to mediate cases for their colleagues on that Court. The pickle is this: --such intra-court mediator appointments create a conflict of interest. This... Continue Reading →
By Donald L. Swanson You are out there: professionals who've had mediation training and are set-to-go as mediators of bankruptcy disputes but, alas, are still looking for cases to mediate. I'd like to introduce you to some attorneys who can't afford a mediator for their smaller-amount cases: they are reading this article. Attorneys with smaller-amount... Continue Reading →
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