“Hallway Mediation” for Multi-Party Disputes that are Stuck and Going Nowhere

"Hallway Mediation" is this: Putting multi-party disputants into a room to talk about their disputes, with the mediator orchestrating (or maybe it's refereeing) the event. I call it "Hallway Mediation" because that's where I first saw it happen and learned to do it: in the hallways outside the Bankruptcy Courtrooms in Omaha, Lincoln and North... Continue Reading →

Proactive Mediator + Settlement Counsel = How it Should be Done in Difficult Cases

By: Donald L. Swanson A typical lawsuit mediation involves a passive mediator dealing with litigation attorneys: --Passive mediators must wait to be engaged and then assist with disputes the parties identify; and --Litigation attorneys are fighting the case in court—they are active belligerents. So . . . the practical effect, in a typical lawsuit mediation, is... Continue Reading →

An Early Mediation Intervention Brings Order Out of Chaos

By: Donald L. Swanson Here’s a scenario where early mediation intervention works: We’re at the beginning of a Chapter 11 case with lots of competing interests.  Everyone is in a fight-every-battle mode—and there are lots of battles to fight.  We’re past the initial flurry of motions for use of cash collateral and relief from stay,... Continue Reading →

Proactive Mediation is Becoming Standard: The Syngenta Example

By: Donald L. Swanson In a remarkable demonstration of cooperation and coordination, three separate courts (both Federal and State) enter proactive mediation orders and appoint the same mediator in three related cases. Fact Background The cases involve a genetically modified strain of corn developed and marketed by Syngenta.  The new strain gets regulatory approval from... Continue Reading →

10 Practical Lessons for Cities Facing Bankruptcy – From a New Ninth Circuit Ruling

By: Donald L. Swanson The Ninth Circuit Court of Appeals, in a new ruling, helps point-the-way for cities facing the complexities of Chapter 9 bankruptcy. The Facts On March 28, 2003, three citizens of Vallejo, California, have a violent encounter with two of Vallejo’s police officers.  A lawsuit ensues. Then, the City of Vallejo files... Continue Reading →

ACTION ITEM: From Preparing for Multiparty Mediation — Part Three

Action Item.  Issues relating to first offer arrangements, non-monetary terms, settlement documentation, number of sessions, and use of an assistant mediator need to be discussed in advance by the mediator with parties and their attorneys to prepare for multiparty mediation sessions. Advance communications on subjects identified in this three-part series will significantly enhance the efficiency... Continue Reading →

Preparing for Multiparty Mediation: A Checklist — Part Three, Items 6-10

By Donald L. Swanson When preparing for a multiparty mediation, the following items 6 through 10 should be addressed by the mediator with the parties and their attorneys in advance communications. Item Six.  First Offer Arrangements. Common questions about the first offer in a mediation are: (1) Which party will make the initial offer at... Continue Reading →

Usual Formula [Unsecured Claim + Bankruptcy = You Lose] Doesn’t Apply (the Nortel Networks Bankruptcy, Part six)

By: Donald L Swanson Unsecured Claim + Bankruptcy = You Lose. I came up with this formula back in 1983, while preparing for a seminar presentation on basic bankruptcy law.  I was trying to come up with something creative to say.  And . . . I must confess . . . I thought it was... Continue Reading →

ACTION ITEM: From Preparing for Multiparty Mediation — Part Two

Action Item. Issues relating to settlement impediments, parties, information and discovery, use of joint sessions, and tax implications need to be discussed in advance by the mediator with parties and their attorneys to prepare for multiparty mediation sessions.  

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