Clients Want To Be Involved in Settlement Negotiations: An Empirical Study’s Finding

By: Donald L. Swanson Finding from an empirical study: litigants "have great enthusiasm" for participating directly in settlement negotiations and have little enthusiasm for negotiations involving “only the attorneys.” --Prof. Donna Shestowsky in, “Research Report: How Litigants Evaluate Legal Procedures at the Start of their Cases,” 50 Court Review 126 (2014). Common Negotiation Practice I started... Continue Reading →

“Public Rights” Doctrine for Bankruptcy Court Jurisdiction is Dead and Buried: Supreme Court’s Oil States Opinion

By Donald L. Swanson “Marley was dead, to begin with . . . dead as a doornail.” Charles Dickens, A Christmas Carol About a year ago, I published this linked article declaring, “the ‘public rights’ doctrine for bankruptcy court jurisdiction, while always tenuous, in now dead and buried.” Now, I’m restating that declaration—this time based on... Continue Reading →

Let’s Add a Mandatory Element to Mediation Programs: A Small Claims Illustration

By: Donald L. Swanson Voluntary mediation programs “attract relatively few cases, even when offered at low or no cost.” --Dr. Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 Willamette Law Review 565 (1997). An Empirical Study Dr. Wissler’s empirical comparison of voluntary v.... Continue Reading →

“Undue Hardship” Discharge — The Top Priority for Student Loan Solutions

By:  Donald L. Swanson The student loan crisis and potential legislation to solve it are in the news these days.  Lots of ideas are bandied about on what legislation might look like. Top Priority There is a top priority for such legislation that dwarfs all others.  The number one priority, bar none (and it’s not... Continue Reading →

Heavy Penalties for Sabotaging a Court-Ordered Mediation: “Unclean Hands”

By Donald L. Swanson “The purpose of the unclean hands doctrine is not to protect the defendant – it is to protect the court from becoming an aider and abettor of iniquity.”  Baek v. Halvorson (In re Halvorson), 581 B.R. 610, 637 (Bankry.C.D.Cal. 2018) Never do this: sabotage a court-ordered mediation. The Baek v. Halverson case shows... Continue Reading →

Oral Arguments in Appling Case: Writing Requirement for Nondischargeability

By: Donald L. Swanson In our uncommonly vicious and partisan political culture, it’s refreshing to hear oral arguments at the U.S. Supreme Court on a non-partisan and apolitical issue.  Here’s one: --Oral arguments held on April 17, 2018, in the bankruptcy case of Lamar, Archer & Cofrin, LLP v. Appling, Case No. 16-1215 [here’s the transcript] .... Continue Reading →

ADR Act of 1998: Defiance in Chicago’s Bankruptcy Court?

By:  Donald L. Swanson Here's the local rule (adopted in November 2017) allowing mediation in Chicago's Bankruptcy Court (emphasis added): RULE 9060-1 MEDIATION AND ARBITRATION Except to the extent required by the Bankruptcy Code or Federal Rules of Bankruptcy procedure, parties to an adversary proceeding or contested matter need not request court approval before pursuing... Continue Reading →

Appeal Deadline in Consolidated Bankruptcy Cases: Supreme Court Adopts Minority View (Hall v. Hall)

By:  Donald L. Swanson A new, and unanimous, decision from the U.S. Supreme Court is Hall v. Hall, Case No. 16-1150 (Decided March 27, 2018). A first read of this opinion seems like a, “What’s the big deal here?” The opinion: Is about a technical issue of appeal procedure; Reaches back, for historical authority, to... Continue Reading →

Local Confidentiality Rules DO Create a Mediation Privilege: ADR Act of 1998

By: Donald L. Swanson “It’s doubtful that a district court can augment the list of privileges by local rule” because “privileges are created by federal common law.” —The Facebook, Inc. v. Pacific Northwest Software, Inc., 640 F.3d 1034 (9th Cir. 2011). The Facebook case deals with evidence on “what was said and not said” during mediation. In Facebook,... Continue Reading →

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