Mediation Confidentiality: Mediator’s Information and Testimony

  By Donald L. Swanson The basic rule is this: the confidentiality of information held by a mediator is nearly-sacred. The case is In re Anonymous, 283 F.3d 627 (4th Cir. 2002). The question is whether a mediator may divulge, or be compelled to divulge, information from a mediation session. An underlying lawsuit is settled... Continue Reading →

The Story of “The Last Bankrupt Hanged”

  “Hanging was a spectator sport in eighteenth-century England, and . . . the usual crowd turned out to watch [John Perrott] swing.  They came to see off not a murderer, rapist, or highwayman, but rather a bankrupt.” E. Kadens, “The Last Bankrupt Hanged: Balancing Incentives in the Development of Bankruptcy Law,” 59 Duke L.J.... Continue Reading →

Seven Findings about “Successful Mediation” — from a Study of Mediation in International Relations

By: Donald L Swanson I recently stumbled upon a fascinating report of a study on issues and trends called “Successful Mediation in International Relations.”  This study looks at 79 international disputes (of which 44 are mediated) occurring during a 45 year period, between 1945 and 1989.  The study makes multiple findings about these mediation efforts.... Continue Reading →

Why Bankruptcy Judges Have a 14-Year Term, Instead of Life Tenure (From Justice White in Northern Pipeline v. Marathon)

By Donald L. Swanson Have you ever wondered why Congress, when it adopted the Bankruptcy Code in 1978, limited the term of service for bankruptcy judges to fourteen years? --This term limitation, established in 28 U.S.C. Sec. 157(a)(1), assures that bankruptcy judges are serving as Article I judges under the U.S. Constitution. Life tenure would... Continue Reading →

How a Creative Mediation Program Turns a Problem into Success

By Donald L. Swanson “We, too, sympathize with the plight of the American farmer. Nevertheless, the solution proposed by the Ahlers majority is contrary to the Bankruptcy Code and a long line of case law.” -- U.S. Supreme Court in Norwest Bank Worthingtonb v. Ahlers, 485 U.S. 197, 209 (1988). The Problem The 1980s are... Continue Reading →

Justice Gorsuch’s First Supreme Court Dissent is Scaliaesque on Statute Construction but Non-Scalia on Public Rights Doctrine (Perry v. Merit Systems)

By Donald L. Swanson On June 23, 2017, Neil Gorsuch issues his first dissenting opinion as a Supreme Court Justice. The case is Perry v. Merit Systems Protection Board (Supreme Court Case No. 16-399). It's about statutory procedures for litigating Federal employee claims.  The dissent by Justice Gorsuch illuminates a comparison of ideas with those... Continue Reading →

Appeals of Bankruptcy (and Other Business) Disputes Take Too Long — Mediation and Other Remedies

By: Donald L. Swanson Advertised Prices: “Haircuts $10 (we add a 3% surcharge if you pay by credit card)” “Sundaes $10 (with a $0.30 surcharge for credit card users)” State Law Violation The State of New York says these advertised prices violate New York General Business Law § 518, which provides: “No seller in any... Continue Reading →

A Unified Theory of Bankruptcy Court Jurisdiction: Wellness International v. Sharif

By Donald L. Swanson Federal courts in the U.S. bankruptcy system have been struggling for decades with the extent and limits of bankruptcy court jurisdiction under the U.S. Constitution. The difficulty begins with Articles I and III of the U.S. Constitution: --Article I, Section 8, says: “The Congress shall have power to . . .... Continue Reading →

Mediation “Dream Team” Appointed in Puerto Rico — But With a “Voluntary” Limitation and Impediment

By Donald L. Swanson On May 21, 2017, the Financial Oversight and Management Board for Puerto Rico files its “Petition” initiating a proceeding under the Puerto Rico Oversight, Management, and Economic Stability Act. This proceeding is described as a pseudo-bankruptcy and is pending in the U.S. Bankruptcy Court for the District of Puerto Rico (Case... Continue Reading →

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