Combining the “Hip Pocket” Service Rule and Early Mediation

By: Donald L. Swanson The California Law Revision Commission is studying mediation confidentiality in the legal malpractice context.  Its Memorandum dated May 27, 2016, discusses ways to address confidentiality concerns. Minnesota's "Hip Pocket" Example An unusual “type of approach” it identifies is Minnesota’s “hip pocket” service rule.  Under this rule, the statute of limitations is... Continue Reading →

Sanctions for Violating Mediation Confidentiality? No.

By: Donald L Swanson The Bankruptcy  Court opinion is In re Brizinova and Soshkin, 565 B.R. 488 (Bkrtcy. E.D.N.Y. 2017). The Trustee sues the debtors to recover assets for the bankruptcy estate. The Debtors file a motion to dismiss, in which their attorney, (i) makes statements the Trustee finds objectionable, and (ii) references information from a... Continue Reading →

Mediation Confidentiality: Mediator’s Information and Testimony

  By Donald L. Swanson The basic rule is this: the confidentiality of information held by a mediator is nearly-sacred. The case is In re Anonymous, 283 F.3d 627 (4th Cir. 2002). The question is whether a mediator may divulge, or be compelled to divulge, information from a mediation session. An underlying lawsuit is settled... Continue Reading →

“The Walls of the Mediation Room are Remarkably Transparent”: From a Study on Mediation Confidentiality

By Donald L. Swanson “In sum, the walls of the mediation room are remarkably transparent." -- James Coben & Peter Thompson The State of California is studying mediation confidentiality in the context of legal malpractice disputes. Suprise # 1 A surprise of the study is from a 2006 law review article by Coben and Thompson... Continue Reading →

How Frequently Does Malpractice Occur in Mediation?

By Donald L. Swanson California has been studying this question: should a malpractice exception be added to California's mediation confidentiality laws? If, for example, a mediating party sues his/her/its attorney for malpractice committed during a mediation session, should statements made during the mediation session be admissible evidence in the malpractice lawsuit? Or should such statements... Continue Reading →

How Mediation Confidentiality is Waived — A Ninth Circuit Decision

By: Donald L. Swanson Can mediation confidentiality be waived? The answer is, “Yes.” --That’s according to the U.S. Ninth Circuit Court of Appeals, from an unpublished “Memorandum” decision in Milhouse v. Travelers Commercial Insurance Co., Case No. 13-56959, 13-57029 (9th Cir., Feb. 23, 2016). Facts The Milhouse residence, located in California, had been destroyed in... Continue Reading →

Another Demonstration of Uncertainty Over Mediation Confidentiality in Bankruptcy

By: Donald L. Swanson "The court declines to adopt a new mediation privilege under the facts of this case." --Judge Cynthia A. Norton, U.S. Bankruptcy Judge  -- December 19, 2016 The case is In re Lake Lotawana Community Improvement District, a Chapter 9 municipale bankruptcy in the Western District of Missouri (Case No. 16-42357).  The issue... Continue Reading →

Mediation Confidentiality: The Second Circuit’s Sensible Standard for Disclosure

By: Donald L. Swanson “Confidentiality is an important feature” of mediation, because it "promotes the free flow of information that may result in the settlement of a dispute." “We vigorously enforce the confidentiality provisions” of our own mediation system “because we believe that confidentiality is essential" to its “vitality and effectiveness.” U.S. Second Circuit Court... Continue Reading →

A List of Bankruptcy Districts that HAVE and HAVE-NOT Adopted Local Mediation Rules

By: Donald L. Swanson I've been asked many times for the number of bankruptcy court districts who, (i) HAVE adopted local rules on mediation, and (ii) HAVE-NOT adopted such rules. --The have-not courts, it seems, are hanging on to the past -- for reasons that are unknown . . . and not readily apparent. Initial... Continue Reading →

Five Reasons Why Mediation Must be Added to the Federal Bankruptcy Rules

By: Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure. Mediation Authorization and Confidentiality The new mediation provision must cover two specific subject areas: (i) mediation authorization, and (ii) mediation confidentiality. Authorization.  If a city is a Chapter 9 debtor in a jurisdiction... Continue Reading →

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