Mandating Mediation to Develop a Mediation Culture

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A glaring contradiction? (Photo by Marilyn Swanson)

By:  Donald L. Swanson

[T]he full benefits of mediation are not reaped when parties are left to participate in it voluntarily.

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).

The article linked above is written by Dorcas Quek, whose resume includes this:

“L.L.B. (National University of Singapore); L.L.M. (Harvard Law School); Visiting Researcher at Harvard Law School (2008-2009); Assistant Registrar and Magistrate in the Singapore High Court (2005-2007) and District Judge in the Primary Dispute Resolution Centre in the Singapore Subordinate Courts (June 2009 onwards).”

Findings

Ms. Quek’s article examines “the current debate in the United States concerning court-mandated mediation.” Here are some of her findings:

Mediation “may well be under-utilized in certain jurisdictions” because parties and attorneys “are still accustomed to treating litigation as the default mode of dispute resolution” and because “initiating mediation” may be “perceived as a sign of weakness.”

“In many jurisdictions, the rates of voluntary usage of mediation have been low.”

Where the “reticence towards mediation is due to unfamiliarity with or ignorance of the process,” court-mandated mediation “may be instrumental” in overcoming “prejudices or lack of understanding.”

“Studies show that parties who have entered mediation reluctantly still benefited from the process even though their participation was not voluntary.”

Observation / Recommendation

Ms. Quek draws this interesting observation / recommendation:

The “most compelling reason” for a court to mandate mediation is “to increase awareness and the usage of mediation services.” So, court-mandated mediation:

–should be utilized “only” as “a short-term measure” in courts where mediation “is relatively less well developed”; and

–is an expediency that “should be lifted as soon as” the awareness and utilization of mediation “has reached a satisfactory level.”

Value Judgment

And she bases such conclusion, in part, on this value judgment:

The term “mandatory mediation” is “a glaring contradiction.” Mediation emphasizes “self-determination, collaboration and creative ways” of resolving disputes and concerns, and “attempts to impose” a mediation process may “undermine the raison d’ˆetre” of mediation. Accordingly, “there must be compelling reasons to introduce mandatory mediation.”

While we can quibble with the idea of limiting mandated mediation, her point on using it to jump-start mediation where it’s struggling to get traction is sound.

Quibbling

In most state and Federal trial courts these days, mediation is firmly entrenched. In such courts, mandatory mediation isn’t improper: it’s, simply, not needed. Here’s why:

If you listen to litigators (who practice in such courts) talking about their cases, about what they have coming-up-next, and about their successes and disappointments, mediation will be a focal point of those discussions. No one needs to suggest mediation to these litigators or to encourage its use: they’ve already factored mediation into their case strategies – and mediation will always play a role. So, discussions of “mandating” mediation, for these litigators, is more of a redundancy than anything else.

Changing the Culture

But for many bankruptcy courts, mediation is still an unfamiliar and little-used process. In these courts, efforts to mandate mediation would be helpful in changing the culture.

Studies show that practitioners with little-or-no experience in mediation are reluctant to use it—and are uncertain on how it can be used effectively. And it shouldn’t be a surprise that mediation is a seldom-used process among these practitioners.

And my experience is that, (i) the adoption of local mediation rules will not, in and of itself, create a demand for mediation: “build it and they will come” does not work for mediation rules; but (ii) a local judge can change things by ordering cases into mediation. Once the judge starts requiring mediation, either by direct order in specific disputes or by local rule, the culture starts to change: practitioners start to become comfortable with mediation and start using it.

Conclusion

So . . . a major initiative in courts where mediation is little-used would be to start ordering specific cases into mediation and to mandate mediation by local rule.

How a Judge Makes Mediation Work: Minimizing Risks in Close-Call and Winner-Take-All Disputes

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Minimizing Risks (Photo by Marilyn Swanson)

By Donald L. Swanson

“The decision here is most likely all or nothing.  One side is going to win and the other side is going to lose—and that’s going to be very happy on one side and very tough on the other side.”

–Judge Steven Rhodes, encouraging parties to reach a settlement, as quoted in “Detroit Resurrected: To Bankruptcy and Back,” by Nathan Bomey.

This statement from Judge Rhodes is a powerful argument for insisting that parties mediate their disputes in close-call / winner-take-all circumstances.  Such circumstances create a moment, if ever one exists, for judicial activism in moving the parties into a mediation process.

Actions, like the quotation above from Judge Rhodes, meet an essential need:

–Imagine you are a party in a lawsuit.  Mediation has not occurred and is not being considered.  Trial day is approaching.  And imagine the judge believes this:

–the decision-after-trial is likely to be a close call; and

–the result is likely to be all-or-nothing for both sides.

–Wouldn’t you want to know this?  And, armed with such information, wouldn’t you appreciate one-last-chance to consider settlement possibilities?

A Duty

I suggest, in such circumstances, that the judge has a duty and obligation to communicate such beliefs to the parties and to direct them into mediation.

A Reason Why

Attorneys who’ve been working a case for an extended period of time often start to believe their arguments!

This is neither cynicism nor a joke.  Here’s how it works in the day-to-day grind of managing a case:

–Upon learning about a case from the client, the attorney’s first impression is of a weak case; but the client is in a difficult position and desperately needs to win.

–The attorney’s research identifies several legal theories, each of which, on its own, seems a bit of a stretch; but the attorney keeps developing the theories—which, collectively, begin after a while to seem plausible.

–After extensive work on the case, the attorney now has a carefully-crafted set of arguments that have an aura, in the attorney’s mind, of weightiness.

–The attorney and the party are beginning to believe they can actually win this case and need to forge ahead.

–They now believe their arguments.

This is one of the reasons why statements, like Judge Rhodes’s quotation above, need to be made to the parties in a close-call / winner-take-all situation.  And this is why the parties must, armed with such knowledge, have one last chance to mediate their case.

Conclusion

In such circumstances, every effort must be made by the judge to fully-inform the parties of the risks and to move the parties into mediation.  Then the parties can:

–take and receive a fresh-look at their arguments and assess anew the risks of their position; and

–take the resolution of their dispute into their own hands – rather than letting a stranger tell them what the resolution is going to be.

Because of Judge Rhodes’s efforts, like his quotation above, mediation worked well in the City of Detroit bankruptcy.

In re SunEdison: Mandatory Mediation to the Rescue?

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A Rescue

By:  Donald L. Swanson

Whereas, mediation may provide an opportunity to consensually resolve the Mediation Issues . . . It Is Therefore, Ordered” that “Representatives of the following parties and their counsel are directed to attend the Mediation in person: (i) the Debtors, (ii) the Committee, . . . [etc.] . . .

Stuart M. Bernstein, U.S. Bankruptcy Judge (In re SunEdison, Doc. 2795, Case No. 16-10992, S.D.N.Y., 04/18/17).

SunEdison has been in Chapter 11 bankruptcy for a year (since April 21, 2016). One of the major issues in the case involves preference, fraudulent transfer and related avoidance claims against a group of businesses with insider-type connections to SunEdison.

The Official Committee of Unsecured Creditors in the SunEdison case explains the avoidance claims and issues like this (in Doc. 2666):

“It is undisputed that recoveries on account of the Avoidance Actions inure to the benefit of – and may be one of only a very few sources of recovery for – unsecured creditors.”

The avoidance claims are based on this information: “while Debtors were insolvent,” the insider-type entities received valuable assets from SunEdison, consisting of “completed energy projects, services and payments worth hundreds of millions, if not billions, of dollars, for which the Debtors did not receive reasonably equivalent value in exchange.” [Emphasis added.]

SunEdison proposes to resolve the avoidance claims by a settlement with its insider-type businesses and allocating $16.1 million from the settlement funds to unsecured creditors. The Committee objects to this “mere $16.1 million” amount, contending that, (i) additional discovery is needed to fully evaluate the settlement, and (ii) the Committee should be allowed to pursue such claims, rather than allowing SunEdison to dictate the terms of a settlement with its insiders.

Last week, Judge Bernstein orders this set of disputes into mediation.

–Time will tell how this mandated mediation plays out: can it provide a rescue?

–The stakes are high: back on March 7, 2017, during a hearing in open Court, the Judge says, “if there isn’t some resolution of the allocation issue by whatever the deadline is, it may be that’s the end of the case.”

It will be interesting to see whether the mediator, the parties and their counsel are up to the rescue challenge.

Next Steps for a Court with Basic Mediation Rules: Mandated and Early Mediation

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The next steps

By: Donald L. Swanson

Here is a common experience in the bankruptcy courts (and other courts) where mediation is a new or little-used tool:

Attorneys have been practicing for years in this court without using mediation.  And mediation is slow to catch on.  Here’s why:

–Attorneys who practice in this court aren’t accustomed to using mediation, aren’t comfortable with inserting mediation into their case planning habits, and rarely even think of mediation as a possibility; and

–Judges in this court aren’t comfortable with the idea of mandating mediation by local rule or by order in a particular case.

            MANDATORY MEDIATION

The Voluntary Mediation Problem

The problem with voluntary mediation, in a new or little-used mediation program, is explained by these two conclusions from a study of empirical data:

–When the goal is to achieve a “regular and significant use” of mediation to resolve court cases, “[v]oluntary mediation programs rarely meet this goal because they suffer from consistently small caseloads.”

–By contrast, “judicial activism in ordering parties into mediation triggers increased voluntary use of the process.”

Moreover, according to the study,  “settlement rates” and a litigant’s perceptions of “procedural justice” are about the same in mandatory mediation as in voluntary mediation.

Three Examples of Mandatory Mediation Rules

Example No. 1.  Circuit Courts of Appeals.  All but one of the U.S. Circuit Courts of Appeals have a mandatory mediation program.  Data from these mandatory programs show them to be highly successful in achieving mediated settlements across all types of cases and regardless of levels of animosity or distrust between the parties.

Example No. 2.  Delaware Bankruptcy Court.  The Delaware Bankruptcy Court, and attorneys who practice there, have extensive experience over many years with using mediation to resolve bankruptcy disputes.  In 2013, the Delaware Bankruptcy Court intensifies its mediation program by adding this mandatory provision to its Local Rule 9019-5(a):

“all adversary proceedings filed in a chapter 11 case . . . shall be referred to mandatory mediation.”

It must be noted that the trajectory of changes to local mediation rules in the Delaware Bankruptcy Court is toward mandated mediation – and away from a voluntary system.

Example No. 3.  New Jersey Bankruptcy Court.  The New Jersey Bankruptcy Court, and attorneys who practice there, also have extensive experience over many years with mediation.  In 2014, the New Jersey Bankruptcy Court expands its mediation program by adding a “presumptive mediation” local rule.  This new rule 9019-2(a) provides:

“Every adversary proceeding will be referred to mediation after the filing of the initial answer to the adversary complaint, except [when a specified exception applies]”; and

“A contested matter . . . may also be referred to mediation . . . by the court at a status conference or hearing.”

In New Jersey, like Delaware, the trajectory of changes to local mediation rules is toward mandated mediation and away from a voluntary system.

EARLY MEDIATION

The Early Mediation Need – Generally

The study of empirical data referenced and linked above observes that mediation “tends to occur late in the life of a case.”  And it issues these findings about mediation timing:

“Holding mediation sessions sooner after cases are filed, however, yields several benefits,” including:

–“Cases are more likely to settle”;

–“Fewer motions are filed and decided”; and

–“Case disposition time is shorter, even for cases that do not settle.”

An Intensified Need for Early Mediation – In Business Bankruptcy

Superimposed over many disputes in a business bankruptcy is an urgent need to maximize value from a debtor’s operations or liquidation.  And this urgency often takes precedence over standard litigation processes like formal discovery and pretrial wrangling.  Accordingly, the need in a business bankruptcy for early and extensive mediation efforts can be particularly intense.

The role of mediation in the early stages of a business bankruptcy case needs to be different from the typical role of mediation that occurs at the end of a lawsuit:

–The role and goal of an early-mediation in a business bankruptcy is to set-the-stage and narrow-the-issues and create-a-direction and a focus for further progression of the case.

–That’s a much different role than a shortly-before-trial mediation in a one-and-done session at the end of a lawsuit, where the goal is to resolve all remaining disputes.

Here’s a link to an example of how mediation can be effectively utilized at the beginning of a Chapter 11 case.

An Example of an Early Mediation Rule

The Delaware Bankruptcy Court recently adopted a provision in its Local Rule 9019-5(j) that allows a defendant to opt for an early mediation of a preference case with less than $75,000 at stake.

Within 30 days after a response to the preference Complaint is due, the defendant in such cases may elect an early mediation of all claims raised in the lawsuit.  In cases where more than $75,000 is at stake, the parties may agree to participate in the early mediation process.

Action Item:

I am passionate about encouraging:

–Bankruptcy courts to adopt local rules on mediation and to expand the role and reach of mediation through mandatory and early mediation requirements; and

–Attorneys who practice is such courts to utilize mediation for resolving their disputes.

And I’d be delighted to discuss such matters with anyone interested in expanding the role and reach of mediation in a local court.

🎶 “This is the dawning of the Age of Aquarius [for Bankruptcy Mediation]”🎶 — A New Jersey Example

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A Dawning

By Donald L. Swanson

🎶Harmony and understanding,  Sympathy and trust abounding, . . . Aquarious🎶

                —The Fifth Dimension

The year is 1968.  The musical “Hair” debuts on Broadway, with the self-assurance of those who have thrown off the norms of prior generations.  Aquarius is now here, we are assured.

I’m not sure what happened.  Perhaps Jupiter didn’t align quite-right with Mars.   Or maybe the moon couldn’t figure out where the “seventh house” might be.  

Whatever the explanation, the peace-love idealism of 1968 is confronted by five decades of reality.  The Age of Aquarius still seems far away.   

The Dawning of Mediation

But if, back in 1968, the “dawning” song had been talking about mediation, it would have been accurate–both as to, (1) creating harmony and sympathy, and (2) the beginning of extensive use. 

–As the 1970s and 1980s progress, mediation is beginning to be a common tool for resolving civil lawsuits. 

–Since then, mediation has become a primary means of resolving suits in a most courts.

Bankruptcy Mediation Catching Up

Bankruptcy is an exception to the history of mediation progression.  For the final two decades of the last century / millennium, bankruptcy courts had little use for mediation.

–But, since then, that has been changing.

–Mediation of bankruptcy disputes is starting to catch up with mediation in other civil courts.

A New Jersey Example

An example of this catch-up is in the New Jersey Bankruptcy Court.

For many years, non-bankruptcy courts in New Jersey have had “presumptive mediation” rules.  Here’s what that means: 

–rules of procedure require that mediation occur before a case is tried, unless an exception applies. 

–It’s presumed that mediation will occur in every case.

New Jersey attorneys, in courts other than bankruptcy, are accustomed to presumptive mediation rules, and they plan their case strategies around the mediation requirement.

So, in 2014, the New Jersey Bankruptcy Court decides to catch up with other courts and adopts “presumptive mediation” rules for adversary proceedings.       

 Here is the operative rule language:

“Every adversary proceeding will be referred to mediation,” unless an exception applies.

Specified exceptions are for cases involving pro se litigants, requesting a TRO or preliminary injunction, being initiated by the US Trustee, or involving requests to be excused.

In July of 2016, a New Jersey bankruptcy attorney / former bankruptcy judge (Raymond Lyons) reports that the New Jersey bankruptcy bar “has accepted” presumptive mediation, “after some initial grumbling,” and that “both the bench and bar are happy with” presumptive mediation.

What we see in New Jersey is an example of bankruptcy courts catching up, on use of mediation, with other courts that have, for many years, been using mediation as a primary case-resolution tool.

Conclusion

The Age of Mediation Aquarius has been around for decades in many non-bankruptcy courts.  The Age of Aquarius for bankruptcy mediation is dawning, as well.

A Surprisingly Successful Pre-Lawsuit Mediation

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Nebraska Pastureland

By Donald L. Swanson

Nebraska statutes contain a Farm Mediation Act (Neb. Rev. Stat. § 2-4801 et seq).

This Act requires a creditor to send notice of a mediation opportunity before attempting to collect a defaulted farm loan.  The statute says:

“At least thirty days prior to the initiation of a proceeding on an agricultural debt in excess of forty thousand dollars, a creditor . . . shall provide written notice directly to the borrower of the availability of mediation.”

What happens after the notice is entirely voluntary.

A Surprising Development

In my early career, I view this mediation notice requirement as a mere formality: a compliance detail creditors must satisfy before suing on a delinquent farm debt.  I do not, back then, see mediation as a viable, problem-solving tool.

But my view on this changes – all in a single day.  The change happens like this.

I am retained (back in 1987 or so) by a rural bank to, (i) file a lawsuit against a farmer to collect a delinquent farm loan, and (ii) then represent the bank in the bankruptcy proceeding that will undoubtedly be filed in response.

I send the mediation notice, as required by the above-quoted statute.  The farmer responds and wants to mediate.  A mediation session is scheduled.

In discussing the upcoming mediation with my client, I express doubts about the effectiveness of mediation.  And I opine that the mediation session will be a mere formality, with an exceedingly-low probability of achieving any resolution.

So, we agree that a bank officer will attend the mediation session with the bank’s home-town attorney – and that I won’t make the several-hour trip to attend.

Late in the afternoon of the mediation session day, I receive a telephone call from the bank officer (the call comes as a surprise because I did not calendar — and forgot about — the mediation session).

His first words are: “We settled the case!”

I remember being amazed . . . and baffled . . . and more-than-a-little embarrassed.  I say, in response, “That’s great!”  But what I’m really thinking is: “Oops!”  and “How did I miss this so badly?”

Conclusion

From that moment on, I’ve been a believer in mediation and its possibilities – even when prospects for settlement appear to be almost nil.  And this belief has proven, on multiple subsequent occasions, to be well-founded.

 

 

Pre-Lawsuit Mediation is Highly Effective Under Farm Mediation Laws

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Nebraska Farmland

By Donald L. Swanson

Who would guess that pre-lawsuit mediation would work well in resolving credit disputes between creditors and farmers in stressed financial circumstances?  But this is  precisely what has happened in farm states under farm mediation statutes.

Mandatory v. Voluntary Pre-Lawsuit Mediation Statutes

Many farm states have established mediation prerequisites for a creditor to file a lawsuit on a defaulted farm obligation.  Some state statutes require a notice of mediation, but mediation developments thereafter are entirely voluntary.  Other state statutes require much more.

Mandatory Mediation Statutes

Iowa Code § 654A.7(1) provides:

“A creditor . . . desiring to initiate a proceeding to enforce a debt against agricultural property . . . shall file a request for mediation with the farm mediation service.  The creditor shall not begin the proceeding . . . until the creditor receives a mediation release. . . [Such requirements] are jurisdictional prerequisites to a creditor filing a civil action.

Minn. Stat. § 583.26 provides:

“A creditor desiring to start a proceeding to enforce a debt against [a farmer] . . . must serve an applicable mediation notice . . . on the debtor . . .  The creditor may not begin the proceeding until [certain mediation requirements are satisfied].”

Voluntary Statutes

Farm mediation statutes in other states merely require that a creditor provide notice of mediation possibilities to the farm debtor before pursuing collection of a farm debt.

Effectiveness of Farm Mediation

A Tulsa Law Review article from 1993 provides an assessment of the effectiveness of such farm mediation requirements during the 1980s Farm Crisis.  The article refers to a “report prepared by Leonard Riskin for the Administrative Conference of the United States” that evaluates the effectiveness of farm mediation requirements in eight states.  The article says this (at 175-76, emphasis added):

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Nebraska Farmland

“The Riskin report includes data detailing the number of mediations in eight states. . . . [The study] solicits information on the number of requests for mediation, the number of cases, and the disposition of cases. While all eight states had an agreement rate of higher than 50%, the percentages range from a low of 55.5% in Minnesota to a high of 93% in Montana. One assumes that the differences in agreement rates are due, in part, to whether a state has a mandatory or voluntary mediation program, and to the disparities in the number of cases each state processes.”

It should be noted that U.S. Census data show that Minnesota and Iowa are high-population states with many farms (Iowa has 3.1 million people and 2.1 million farms; Minnesota has 5.5 million people and 74,500 farms), while Montana is a low-population state with fewer farms (1.0 million people and 27,800 farms).

A 2015 Fiscal Year report of mediation effectiveness of Minnesota’s Farmer-Lender Mediation program shows significant improvement from the 1980s experience.  in 2015:

–2,472 mediation notices were sent by creditors

–1097 farm debtors requested mediation, of which 917 completed mediation

–The total amount of debt reported and addressed in the mediation sessions is “approximately $180.6M”

97% of farm debtors who completed mediation reached a settlement with the creditor

Conclusions 

  1. Pre-lawsuit mediation can be highly effective.  A mediation agreement rate between 55.5% and 97% is pretty-darn-good!
  2. Again, let’s emphasize that we are talking here about pre-lawsuit mediations.  These aren’t cases where everyone has been fighting in court for a long time, is weary of the fight and is, therefore, highly motivated to get disputes settled.  These are before-the-legal-fight-begins mediations.
  3. Whether pre-lawsuit mediation statutes provide for voluntary mediation or mandate mediation, settlement rates are strong.

 

 

 

How a Contrarian Gets its “Motion to Compel Mediation” Denied

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A Contrarian

By Donald L. Swanson

“for the reasons set forth on the record at the Hearing, the [Motion to Compel Mediation] is DENIED without prejudice.”

U.S. Bankruptcy Judge, Delaware, July 20, 2016

Energy Future Holdings Corp. files Chapter 11 bankruptcy in 2014.  Along the way, it engages in a mediation process that resolves nearly all objections to confirmation of its plan of reorganization.

As the plan confirmation hearing approaches, only a few hold-out creditors remain.

The name of one hold-out creditor is “Contrarian Capital Management, LLC.”

–You can’t make this stuff up.

Mediation Motion

Contrarian files its “Motion to Compel Mediation of Disputes.”  It wants to mediate the issues raised in its objection to confirmation.

Contrarian should get an easy-win on its mediation Motion, right?

–Not hardly.

The Debtor and a Committee object to Contrarian’s mediation Motion.  They say Contrarian’s plan objections are “meritless” and will be rejected at trial.  They also say the mediation Motion is nothing more than an attempt to “derail” and “stall” the plan confirmation process.

The Bankruptcy Court hears the mediation Motion and accepts the “meritless” and “derail” and “stall” arguments.  So, the Bankruptcy Court denies Contrarian’s mediation Motion (the quotation above is the denial order).

Hard-Knocks Rules

In this situation, the following two hard-knocks rules (i.e., rules learned the hard way) seem to be operative:

1.  When a party’s odds of prevailing at trial are viewed by the opposition as 0%, mediation is a waste of time.

–This rule appears to explain part of the Court’s rationale for denying the mediation Motion.

2.  When a party recognizes that its own odds of prevailing at trial are slim-to-none, it’s time to exit the battle as graciously and painlessly as possible (even though the pain of exit will, sometimes, be intense).

–It appears that Contrarian’s mediation Motion may be such an exit attempt, but the attempt isn’t working very well.

 

Success of Mandatory Mediation Leads to an Expansion of its Role

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This plant expanded successfully from one small shoot.

By: Donald L. Swanson

It’s always great to see an experiment produce successes that lead to an expansion of the experimental endeavor.

This success-and-expansion is exactly what’s happened with mandatory mediation experiments in the Delaware Bankruptcy Court.

Delaware’s Mandatory Mediation

The Delaware Bankruptcy Court began mandating mediation, by local rule, in preference cases back in 2004.

Nearly a decade later, the Delaware Bankruptcy Court expands its mandatory mediation program to include all adversary proceedings filed in Chapter 11 cases. The new language, appearing in Local Rule 9019-(5)(a), is this:

–“all adversary proceedings filed in a chapter 11 case . . . shall be referred to mandatory mediation.”

The Delaware Bankruptcy Court’s history with mandated mediation is positive.  One advantage of such a mandate-by-local-rule is this:

–attorneys know that a mediation must occur before trial, so they plan on the mediation and incorporate mediation into their case plans and strategies.

Mandatory Mediation Elsewhere

In addition to the history of success-and-expansion in Delaware preference actions, mandatory mediation has a long history of success-and-expansion elsewhere too.  For example:

–In the Second Circuit Court of Appeals, mediation experiments from the 1970s contain a mandatory mediation component — and those experiments became successful.

–Today, nearly all of the U.S. Circuit Courts of Appeals have mediation programs with a mandatory mediation component that are similar to the Second Circuit’s experiment efforts in the 1970s.

A Prediction

Here’s predicting that mediation-mandated-by-local-rule will become increasingly prominent in bankruptcy courts throughout the land.

Proactive Mediation is Becoming Standard: The Syngenta Example

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Proactivity

By: Donald L. Swanson

In a remarkable demonstration of cooperation and coordination, three separate courts (both Federal and State) enter proactive mediation orders and appoint the same mediator in three related cases.

Fact Background

The cases involve a genetically modified strain of corn developed and marketed by Syngenta.  The new strain gets regulatory approval from the U.S. and other countries – but not from China.

Corn prices begin dropping when China begins rejecting U.S. corn shipments that contain even a trace of this new strain.

So, corn farmers begin suing Syngenta in state and Federal courts throughout the Corn Belt.

–Many of these cases are consolidated into a multi-district proceeding in the U.S. District Court in Kansas.

–Many of these cases are moving forward in a Minnesota state court, where Syngenta is located.

–And many of these cases are pending in the U.S. District Court for Southern Illinois.

The Kansas proceeding is now certified as a class action, though class certification is on appeal to the Tenth Circuit.  Ag Census data from 2012 counts 2.1 million farms in the U.S., many of which plant corn and would be covered by this class action.

Jury trials in the Syngenta cases are scheduled to begin this Spring on individual farmer cases, as class representative or bellweather trials.

[An interesting / ironic twist: Syngenta is being sold to a company from China, and the proposed sale is wending its way through regulatory scrutiny.]

Proactive Mediation Orders

Back in March of this year (2016), all three Syngenta judges enter similar mediation orders and appoint the same mediator (here are links to their respective mediation orders:  Kansas case, Minnesota case and Illinois case).

–Each order identifies the mediator as a “Special Master for Settlement,” because the mediator is appointed under civil procedure Rule 53 on special masters.

These orders establish an atypical mediation process.

— Typical mediation is passive: a mediator is hired to meet with the disputing parties (usually in a one-and-done session) and help them reach a settlement.

–These orders are highly proactive: it’s more like “mediation on steroids.” [I wish I could take credit for coining this phrase.]

Each of these orders provides that the mediator may:

–Order the parties to meet face-to-face and engage in serious and meaningful negotiations.

–Construct an efficient procedure to engage the parties in settlement negotiations.

–Order production of all necessary information.

–Order the appearance of any persons necessary to settle any claims completely.

–Make recommendations to the court concerning any issues that may require resolution in order to facilitate settlement or to efficiently manage the litigation.

–Direct, supervise, monitor, and report upon implementation and compliance with the Court’s orders, and make findings and recommendations on remedial action if required.

–Require the parties to appear in person, via video conference, or telephonically.

–Pursuant to Rule 53(b)(2)(B), communicate ex parte with the Court at any time.

Next Mediation Steps in Syngenta

It’s difficult, if not impossible, to predict when (or if) the Syngenta cases will become ripe for mediated settlements on ultimate/global/final disputes.  Perhaps such ripeness will occur before jury trials begin in the Spring—or maybe ripeness will await the conclusion of some of those trials.

But it seems safe to assume that the proactive mediator is, meanwhile, working diligently and behind-the-scenes to, (i) resolve interim disputes, and (ii) create a structure and organization for addressing and resolving ultimate/global/final disputes when they become ripe for settlement.

–Interim disputes example:  A recent Order (Doc. 2703) from the Kansas Court reveals that the mediator helped resolve disputes over language in the initial class action notice document.

Application to Bankruptcy Cases

Syngenta is not in bankruptcy.

But the proactive mediation established by the Syngenta courts in Kansas, Minnesota and Illinois is similar to the proactive mediation established, and utilized effectively, in the City of Detroit bankruptcy and in other large bankruptcy cases.

Here’s predicting that proactive mediation will (and should) become standard practice in Chapter 11 reorganization cases and in Chapter 9 municipal adjustment cases.

–Here’s why:  because proactive mediation works.