A Final Step to Uphold Mediation Confidentiality in Federal Courts

By: Donald L. Swanson   (d) Confidentiality Provisions.— Until such time as rules are adopted under [28 U.S.C. §§ 2071 et seq.] providing for the confidentiality of alternative dispute resolution processes . . . , each district court shall, by local rule adopted under section 2071(a), provide for the confidentiality of . . . dispute resolution... Continue Reading →

There’s No-Such-Thing as a “Mediation Privilege” in Federal Court?!

By: Donald L. Swanson It's a beautiful scene:  Federal courts applying and enforcing their local rules on mediation confidentiality. --Nearly all U.S. District Courts and U.S. Circuit Courts of Appeals, and many Bankruptcy Courts, have such local rules. But then the Ninth Circuit Court of Appeals comes along with a bombshell.  It suggests that local... Continue Reading →

Mediation Confidentiality: Federal Evidence Rule 408 Leaks Like a Sieve

By: Donald L. Swanson Chapter 11 Debtor successfully mediates confirmation disputes with a half-dozen creditors.  Now, a hold-out creditor moves for discovery of the mediation communications in an effort to torpedo plan confirmation. The mediating parties come to realize that their Bankruptcy Court has no local rule requiring mediation confidentiality.  And, of course, there is... Continue Reading →

Mediation Without Confidentiality Rules: This Needs to Change

By: Donald L. Swanson “You don’t need my permission. Just click your heels together three times and say, ‘There is no place like mediation.’” --U.S. Bankruptcy Judge Benjamin Goldgar, In re Caesars Entertainment hearing on 2/18/2016. Despite such a statement, the Bankruptcy Court in Chicago had already, prior to February 2016, revoked its local rules... Continue Reading →

How the Mediation Privilege Works, with an “Opened the Door” Exception: a New Bankruptcy Court Ruling

By: Donald L. Swanson Four law firms are squabbling over how to divide a $20 million attorney fees fund in a bankruptcy case.  [Insert your own derisive epithet here.] The Facts A two-year and multi-session mediation results in settlements of asbestos-related claims.  One such settlement involves a $90 million payment from an insurance company, $70... Continue Reading →

Mediation Confidentiality is the Source of Judicial Bewilderment

   By: Donald L. Swanson "I found the [Mediator's resignation] letter to be a little bit bewildering."             --A. Benjamin Goldgar, Chicago Bankruptcy Judge, September 21, 2016. Judge Goldgar is, obviously, an excellent jurist with excellent judgment. But everyone makes mistakes. And Judge Goldgar's flap with the Caesars mediator over... Continue Reading →

Chicago Bankruptcy Court v. Mediation: Making News . . . Again!

By Donald L. Swanson Back in February, 2016, we learn that the Bankruptcy Court in Chicago has revoked its local rules on mediation, while still encouraging parties to mediate their disputes. This development seems a bit . . . well . . . bizarre. After all, for example, such an approach appears to violate Federal... 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 →

Compelling a Mediator to Testify: Here’s How it’s Done

 By: Donald L Swanson "Testimony from the mediator would be crucial . . . and . . . refusing to compel that testimony posed a serious threat." "It became clear that the mediator's testimony was essential to doing justice here--so we decided to use it." Wayne Brazil, Magistrate Judge, U.S District Court for Northern California... Continue Reading →

Freedom of the Press v. Mediation Confidentiality: Inside A Bankruptcy Court Dust-Up

By: Donald L. Swanson A Bankruptcy Court Judge is concerned about “leaks of sensitive, non-public information concerning the bidding process and mediation.”  The bankruptcy case is In re Molycorp, Inc. (Case No. 15-11357 in the District of Delaware). A "Leaks" Problem The Bankruptcy Judge identifies three Bloomberg articles authored by Jodi Xu Klein and others... Continue Reading →

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