On Bankruptcy and Mediation
By: Donald L. Swanson The U.S. District Court for the Middle District of Florida has a mediation policy that’s mandatory. A dispute can be excused from mediation, however, “upon a determination” that it “is not suitable for mediation.” A recent case shows how the Middle District’s policy of mandated mediation offers more than one road to... Continue Reading →
By: Donald L. Swanson "mediated agreements are accorded the same res judicata effect and enforceability as a . . . judicial decree.” --Hoglund v. Aaskov Plumbing & Heating, No. WCB-05-280, slip op. (Maine S.Ct. Apr. 26, 2006) The foregoing quotation is the strongest articulation by a court I've seen on the strength and effectiveness and... Continue Reading →
By Donald L. Swanson The Judges are irritated, to begin with. If anything is clear in In re Anonymous, 283 F.3d 627 (4th Cir. 2002), it’s this: the Judges on the U.S. Court of Appeals are more-than-slightly unhappy with the two attorneys in the case. A Confidentiality Issue The Court hauls two competing attorneys before the... Continue Reading →
By Donald L. Swanson “The concept of a mediator going outside of the role of just settling a dispute and soliciting money to help settle that dispute is unprecedented in the history of bankruptcy and in the history of mediation as far as I know.” --Judge Steven Rhodes, as quoted in “Detroit Resurrected: To Bankruptcy... Continue Reading →
By Donald L. Swanson “The mediators’ record of accomplishment in this case establishes but one plan, one agenda, one bias—to settle as much of the case as they can and to do so tirelessly and selflessly.” --Judge Steven Rhodes, responding to allegations of mediator bias, as quoted in “Detroit Resurrected: To Bankruptcy and Back,” by... Continue Reading →
By Donald L. Swanson “objectors essentially suggest that [the mediator] was too blind to see collusion at the tip of his nose during the mediation, or that [he] was part of the collusion. The court rejects these insulting, baseless arguments.” Speaks v. U.S. Tobacco Cooperative, Inc., 324 F.R.D. 112, 140 (E.D.N.C. 2018). The Facts On October... Continue Reading →
By: Donald L. Swanson Mediation should occur "at some reasonable point,” (i) “before discovery is completed,” and (ii) after “critical motions have been decided.” --Suzanne J. Schmitz, A Critique of the Illinois Circuit Rules Concerning Court-Ordered Mediation, 36 Loy. U. Chi. L. J. 783 (2005). Early Mediation Referral Law Professor Suzanne J. Schmitz says that mediation... Continue Reading →
By: Donald L. Swanson The U.S. Sixth Circuit “moved to random selection” of cases for mediation because “cases that appeared to be amenable to mediation were not actually more likely to settle than any other case.” Sixth Circuit Appellate Blog, April 6, 2012. A False Assumption One of the early assumptions about mediation is that some... Continue Reading →
Competing and Turbulent InterestsBy Donald L. Swanson The case is In re Anonymous, 283 F.3d 627 (4th Cir. 2002). It’s an attorney discipline action over breaches of mediation confidentiality in an arbitration. The dispute in arbitration is between an attorney and his former client over litigation expenses. This dispute arose after the attorney and client concluded... Continue Reading →
By Donald L. Swanson “Even if a plan emerged out of mediation that unfairly discriminated against financial creditors, it’s the court’s responsibility to block the deal.” -- Judge Steven Rhodes, as reported by Nathan Bomey in “Detroit Resurrected: to Bankruptcy and Back.” Judge Rhodes is defending his mediators in the City of Detroit bankruptcy against... Continue Reading →
MEDIATBANKRY 