On Bankruptcy and Mediation
By Donald L. Swanson --Mediators “showed a marked preference toward” a facilitative style of mediation, but --Mediators “believe that parties and their advisers expect them" to use an evaluative style of mediation. These findings are recently published (on May 11, 2016) by the Centre for Effective Dispute Resolution (located on Fleet Street in London, England)... Continue Reading →
Action Item. Preparation efforts must be made in a multi-party mediation before the parties will be ready for final mediation sessions.
By Donald L. Swanson Two-party and three-party mediations can fit well into a one-and-done session model. But four and more parties are difficult to manage in a one-and-done. Consider this: in a four-party mediation that begins at 9:30 a.m. with a 30 minute joint meeting and a 30 minute caucus with each party, it’ll be... Continue Reading →
By Donald L. Swanson Multi-party mediation can work effectively in bankruptcy, especially on plan confirmation issues. Such effectiveness is apparent in the City of Detroit and the Archdiocese of Milwaukee bankruptcy cases. Keep in mind that these Detroit and Archdiocese mediation efforts aren’t merely multi-party in the sense of five or six parties. These mediation... 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 →
Action Item. In every bankruptcy mediation where the fight is still fresh, we need to recognize that a one-and-done session expectation is probably unrealistic—and adjust our expectations accordingly.
By Donald L. Swanson I’m in a mediation session for a state court commercial case. The parties have been at it for a couple years. And everyone’s expectation is that this will be a one-and-done session. One of the first things Plaintiff’s president says to me is, “Can you believe we’ve paid over [$xxx] in... Continue Reading →
"Do not go out hastily to argue your case; Otherwise, what will you do in the end, When your neighbor puts you to shame?" --Prov. 25:8 By: Donald L. Swanson It now seems obvious that the Archdiocese of Milwaukee overplays its hand after receiving a favorable ruling from the U.S. District Court in Milwaukee. Here... Continue Reading →
By: Donald L. Swanson Celebrity brushes with the law always add spice to otherwise hum-drum subjects. Who would have ever predicted, for example, that someone like Anna Nicole Smith (fka Vickie Lynn Marshall) could cause havoc within the bankruptcy system? Then there is Willie Nelson and his IRS battles. Or how about John Fogerty’s long... Continue Reading →
Action Item. All participants in a bankruptcy mediation need to understand, in advance, that a discovery vacuum, (1) might require a recess in the mediation session until the discovery vacuum can be filled, or (2) needs to be identified and addressed in pre-session communications..
MEDIATBANKRY 