Part Two — Contingent Fee or Success Fee For Mediators: Why Not?

By Donald L. Swanson Some time ago, I published an article titled, “Contingent Fee or Success Fee for Mediators: Why Not?”  The punchline of the article was, in the words of Paul McCartney, “Let it be.” Responses to the fees issue in that article were strong and largely negative, as expected. So, I’d like to take... Continue Reading →

Can You Be Held in Contempt for Obeying a Court Order? The U.S. Supreme Court Will Decide (Taggart v. Lorenzen)

By: Donald L. Swanson A Hypothetical: You’ve sued an individual in state court for injunctive and other relief. Your defendant then files bankruptcy and receives a Chapter 7 discharge. Then, you ask the state court to determine that you can proceed with the lawsuit, despite the bankruptcy discharge. The state court says you can, and so... Continue Reading →

Articulating an Opponent’s View, With Accountability: An Important Study for Mediators

By: Donald L. Swanson Immeasurable harm has resulted from an inability to appreciate that opposing views can be reasonable and coherent. A major cause of such harm is this: partisans lose touch with the views of others and dismiss contrary perspectives as foolish or biased. These propositions are from the authors of a 2015 study [Fn.... Continue Reading →

Mediated Settlements Require Court Approval in Bankruptcy: Limits on “Standing” to Object

By Donald L. Swanson Mediated settlement agreements in bankruptcy are subject to approval by the bankruptcy court after notice to interested persons. [Fn. 1] A Recent Case An entity named “Empower” took aggressive action in a recent bankruptcy case to prevent approval of settlements and a plan, all of which arose from extensive negotiation and mediation... Continue Reading →

The Mediator as Proactive Leader

By Donald L. Swanson “The concept of a mediator going outside of the role of just settling a dispute and soliciting money to help settle that dispute is unprecedented in the history of bankruptcy and in the history of mediation as far as I know.” --Judge Steven Rhodes, as quoted in “Detroit Resurrected: To Bankruptcy... Continue Reading →

A Practical Question That’s Being Ignored at U.S. Supreme Court (Mission Product v. Tempnology)

By: Donald L. Swanson Oral arguments are scheduled for February 20, 2019, before the U.S. Supreme Court in Mission Product Holdings v. Tempnology, LLC (Case No. 17-1657). Legal Question – Effect of Rejection The legal question in Mission Product v. Tempnology is whether the “rejection” of a trademark license agreement—which constitutes a breach of such agreement—terminates... Continue Reading →

Two Mediation Tools: Bracketed Bargaining and Mediator’s Proposal

By: Donald L. Swanson Bracketed bargaining and a mediator’s proposal are useful and effective mediation tools. Each has its own role and function—which do not overlap. These two tools are examined in a 2015 empirical study titled, “Inside the Caucus: An Empirical Analysis of Mediation from Within” [Fn. 1]. The study is based on 400 employment... Continue Reading →

Corporate Welfare for High-Price Colleges Creates Long-Term Servitude for Students

By: Donald L. Swanson “the borrower is servant to the lender” Proverbs 22:7 (KJV). The long-term drag of student loans on the lives of many college graduates is a horrible thing. And discussions about relieving that problem are important. But long-term effects on students are a mere symptom of the problem. The underlying problem is this:... Continue Reading →

How a Judge Makes Mediation Work: Defending the Mediator

By Donald L. Swanson “The mediators’ record of accomplishment in this case establishes but one plan, one agenda, one bias—to settle as much of the case as they can and to do so tirelessly and selflessly.” --Judge Steven Rhodes, responding to allegations of mediator bias, as quoted in “Detroit Resurrected: To Bankruptcy and Back,” by... Continue Reading →

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