A learned-the-hard-way lesson for multiparty mediation is this: Advance communications are needed to prepare multiple parties for final negotiations.
Preparing for Multiparty Mediation: A Checklist — Part One, Introduction
By Donald L. Swanson Here’s a confession. I’m in a four-party mediation. It begins at 9:30 a.m. in a joint 30-minute meeting. The mediator then spends 30 minutes with each party. It’s now noon — we’re taking lunch orders — and the mediation process has only just begun! At mid-afternoon, positions are far apart, and... Continue Reading →
A Suggestion: Shut-Off-The-Spigot Plus Mandatory-Mediation (the Nortel Networks Bankruptcy, Part Four)
By: Donald L Swanson First of all, I know this suggestion will never happen. But it should. This suggestion, if implemented long ago, would have dramatically increased odds of a mediated settlement in the Nortel bankruptcy. Such a settlement would have stopped the excessively-expensive and excessively-long-running legal battles in the Nortel Networks bankruptcy (Case No.... Continue Reading →
By Donald L. Swanson Last night I came across this new book on bankruptcy mediation. I ordered it immediately! And can't wait to read it. I know its authors. They all have great legal minds and a depth of practical and scholarly experience in bankruptcy mediation. This book is a must-have and can be ordered here.
Mediation as a Condition for Confirmation of a Disputed Chapter 11 Plan
By Donald L. Swanson Here's a proposal: Mediation among disputing parties should be a condition precedent for a final confirmation hearing on a contested Chapter 11 plan. The short history of bankruptcy mediation bears out the value of this proposal. --Songs of praise have been sung everywhere (in a bankruptcy / professional sort of way)... Continue Reading →
Intransigence = Mediation Failures (the Nortel Networks Bankruptcy, Part Three)
By Donald L. Swanson Have you ever noticed that synonyms for "intransigence" often come from farm animals: e.g., bullheadedness, doggedness, pigheadedness, stubborn as a mule? Such qualities aren't very helpful on a farm. But they are killers in mediation. "Intransigence" describes the four-time failures of the Nortel Networks mediation efforts to reach a funds allocation and... Continue Reading →
Should We Choose “Confidentiality” Over “Ensuring Good Behavior” in Mediation? A Legal Malpractice Debate in California
By Donald L. Swanson In the early 1980’s, mediation began gaining acceptance in California as a means of resolving disputes. Since then, California law has placed a high value on mediation confidentiality and privacy. The Supreme Court of California, in Simmons v. Ghaderi, 44 Cal. 4th 570, 588, 187 P.3d 934, 80 Cal. Rptr. 3d... Continue Reading →
Discovering How Mediation Can Bring Order Out of Chaos
By Donald L. Swanson Eons ago, as measured by the short history of bankruptcy mediation, we are representing a creditor in a contentious Chapter 11 case. The case has many creditors, a wide range of constituencies and a chaotic existence. Efforts to bring order are having limited success. So someone suggests mediation. Most parties think... Continue Reading →
A 2015 Judicial Scolding for “Self-Serving” and “Narcissistic” Mediation Positions (the Nortel Networks Bankruptcy, Part Two)
By: Donald L. Swanson The primary issue in the Nortel Networks bankruptcy is this: How should the remainder of a $7.3 billion fund be allocated among creditors? $2 billion or-so of this fund has already been used to pay professional fees in the fight. The U.S. portion of the Nortel Networks case is in the... Continue Reading →
Mediation is “A Very Young Profession”: A New Study of Mediation in the U.K. [Part 2]
By Donald L. Swanson “Commercial mediation is firmly established in the dispute resolution landscape. We are, however, still a very young profession.” This is a finding of the Centre for Effective Dispute Resolution (located on Fleet Street in London, England) in its “Seventh Mediation Audit: A survey of commercial mediator attitudes and experience” dated May... Continue Reading →
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