On Bankruptcy and Mediation
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 →
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 →
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 →
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 →
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 →
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 →
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 →
LinkedIn Discussion Response to Mediator Testifying as a Witness?! A New Appellate Opinion on Mediation Confidentiality Click here to view full discussion commentators credentials.
By: Donald L. Swanson Here’s something you don’t see every day: an appellate opinion on mediation confidentiality. It allows a mediator to testify about what happened in the mediation. The opinion is a week old -- dated April 12, 2016 -- and is published here. The case is Shriner v. Friedman Law Offices, 23 Neb. App.... Continue Reading →
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