On Bankruptcy and Mediation
Pursuing a strategy? (Photo by Marilyn Swanson) By: Donald L Swanson “There is no federal mediation privilege”;“the mediator's testimony about the mediation is not privileged”; and“there is no legal bar to Defendants seeking the [mediator’s testimony] with regard to the mediation and settlement negotiations.” --Roberts v. City of Fairbanks, Case No. 17-cv-00034, U.S. District Court of... Continue Reading →
Not real (photo by Marilyn Swanson) By: Donald L Swanson An insurer in the Boy Scouts of America bankruptcy [fn. 1] files a motion to compel production of documents held by a proposed mediator who did not become an actual mediator in the case. The proposed mediator opposes production based upon a mediation privilege. Guess how... Continue Reading →
Face-to-face communications (photo by Marilyn Swanson) By: Donald L Swanson Electronic communications (e.g., emails and texts) fail to convey the non-verbal cues that are readily apparent in face-to-face communications. That’s an unsurprising conclusion from a study titled, “Ask in person: You're less persuasive than you think over email.” [Fn. 1] Dominant Email and text communications are... Continue Reading →
Patience and perseverance are required (photo by Marilyn Swanson) By: Donald L Swanson A mediator’s motto must always be, “Never give up.” At the beginning of any mediation, a mediator will hear, all the time and from all the parties, “No, never!” So, a mediator must ignore such statements and keep talking—exercising patience and perseverance .... Continue Reading →
Reprinted with permission from the ABI Journal, Vol. XL, No. 9, September 2021. View the original publication here. By: Donald L Swanson Mandated mediation is authorized by federal statute. As such, 28 U.S.C. § 652(a) provides, “Any district court that elects to require the use of alternative dispute resolution in certain cases may do so only... Continue Reading →
When hazards happen (photo by Marilyn Swanson) By: Donald L Swanson “Puffing” is famously—or notoriously—known as acceptable negotiating behavior in these United States. “Puffing” means something akin to “fibbing”: taking exaggerated positions, pursuing hidden agendas, hiding the ball on willingness to bend, etc. Although “puffing” in negotiations may be acceptable behavior, it is, often, not a... Continue Reading →
An expired deadline? (Photo by Marilyn Swanson) By: Donald L Swanson Every party in a mediation or other negotiation effort puzzles over time limits for responding to offers. Questions that offering parties often grapple with include: How long should the time limit be for responding?Should the time-limited offer be presented as a step in the negotiating... Continue Reading →
https://youtu.be/0kEXfRwXDSg By: Donald L Swanson The Mediation Committee of the American Bankruptcy Institute promotes mediation as a tool for resolving bankruptcy disputes. The new statutory duty of a Subchapter V trustee to “facilitate the development of a consensual plan of reorganization” (under § 1183(b)(7)) is a mediator-like role, which finds a home in ABI’s Mediation Committee.... Continue Reading →
11 U.S.C. Sec. 1183(b)(7) — Duty to facilitate The following article is reprinted with permission from the American Bankruptcy Institute—originally published in its Mediation Committee Newsletter. Here is a link to the original publication, dated 6/30/2021. By: Hon. Louis H. Kornreich, David A. Mawhinney & Donald L Swanson The Bankruptcy Code directs the trustee in... Continue Reading →
Webinar -- Promotional Notification By: Donald L Swanson What follows is a script (more or less) of my portion of a panel presentation in an webinar, presented on September 14, 2021, sponsored by the Mediation Committee of the American Bankruptcy Institute ("ABI"), titled "Facilitation Skills for Subchapter V Trustees." A video of the webinar appears at... Continue Reading →
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