On Bankruptcy and Mediation
Contempt of the rules of road? (photo by Marilyn Swanson) By: Donald L Swanson “the specter of sanctions and contempt spawns ancillary litigation that often eclipses the issues at the heart of the underlying dispute.” --From In re A.T. Reynolds & Sons, Inc., 452 B.R. 374, 376 (S.D.N.Y. 2011), reversing a Bankruptcy Court order of contempt... Continue Reading →
An effective tool (photo by Marilyn Swanson) By: Donald L Swanson Mediation-in-bankruptcy has been an effective tool for resolving mass tort cases. That effectiveness has been for the benefit of all parties involved, such as: helping to maximize recoveries for tort claimants;helping to allocate scarce funds among competing tort claimants and other creditors; andhelping to keep... Continue Reading →
Not tough and firm (photo by Marilyn Swanson) By: Donald L Swanson Being “tough and firm” in negotiations: Takes “less effort than being warm and friendly”; Results “in better financial outcomes; has “no apparent social cost”; butis commonly viewed, incorrectly, as less effective than “warm and friendly.” Such are the conclusions drawn from a four-part study [Fn. 1]... Continue Reading →
Reflecting back on what works and what doesn’t (photo by Marilyn Swanson) By: Donald L Swanson A recent research project measures the effects (both short and long term) of four mediator strategies on party attitudes and outcomes. [Fn. 1] What follows is a summary of the project’s findings on these mediator strategies: Eliciting Participant Solutions;Neutral Offering... Continue Reading →
Self-Centered? (photo by Marilyn Swanson) By: Donald L Swanson A study on “egocentrism” and “misunderstanding in conflict and Negotiation” is enlightening. [Fn. 1] “Egocentrism” is defined as an “excessive interest in oneself . . . at the expense of or in disregard of others.” Study Findings The study finds, in three separate experiments, that negotiating parties,... Continue Reading →
An overreach? (photo by Marilyn Swanson) By: Donald L Swanson “Mediating judges have largely slipped through the cracks of widespread academic discussion. . . . Yet, some practices create the perception or the reality of judicial overreach in ways that elude standard judicial accountability measures.” Prov. Melissa B. Jacoby, “Other Judge’s Cases,” at 68 (January 22,... Continue Reading →
A report By: Donald L Swanson Here’s a first of its kind: a report about federal judges mediating other judges’ cases. It's a January 22, 2022, report titled, Other Judges’ Cases, authored by Melissa B. Jacoby, Professor of Law, University of North Carolina at Chapel Hill—scheduled to publish in 72 NYU Annual Survey of American Law... Continue Reading →
Adjustments to unique circumstances? (Photo by Marilyn Swanson) By Donald L. Swanson The opinion is from In re The Diocese of Buffalo, N.Y., Case No. 20-10322, Western New York Bankruptcy Court (entered December 27, 2021, Doc. 1487). The Diocese of Buffalo asks the Bankruptcy Court to refer its Chapter 11 case and related adversary proceedings to... Continue Reading →
Managing tension (photo by Marilyn Swanson) By: Donald L Swanson On January 3, 2022, Reuters reports, under the heading “Judge orders mediation for Purdue, Sacklers over opioid settlement,” as follows: A U.S. bankruptcy judge orders mediation in the Purdue Pharma bankruptcy [fn. 1], calling for the company, the Sackler family members that own it and nine... Continue Reading →
Pursuing a strategy? (Photo by Marilyn Swanson) By: Donald L Swanson “There is no federal mediation privilege”;“the mediator's testimony about the mediation is not privileged”; and“there is no legal bar to Defendants seeking the [mediator’s testimony] with regard to the mediation and settlement negotiations.” --Roberts v. City of Fairbanks, Case No. 17-cv-00034, U.S. District Court of... Continue Reading →
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