Mandated Mediation: Authorized By Federal Statute

By: Donald L Swanson “Any district court that elects to require the use of alternative dispute resolution . . . may do so only with respect to mediation, . . . “         --From 28 U.S.C. § 652(a)—Alternative Dispute Resolution Act of 1998. The correct view on a Federal court's authority to mandate... Continue Reading →

Stressed Family Businesses: Chapter 11 Reorganization Must Work For Them

By: Donald L. Swanson Family businesses who need to reorganize have a tough go in bankruptcy. There are lots of impediments, both legal (e.g., absolute priority rule) and economic (Chapter 11 is expensive).  The Small Business Reorganization Act of 2019 will help, but it only applies to businesses with less than $2.7 million of debt. An Extraneous... Continue Reading →

How To Mandate A Voluntary Mediation System That Thrives: A Minnesota Example

By Donald L. Swanson Back in 1994, Minnesota state courts adopt a "mandatory consideration" rule for alternative dispute resolution ("ADR") possibilities. The rule works, back then, like this: Attorneys are required to, (i) consider using ADR in every civil case, (ii) discuss ADR with their client(s) and opposing counsel, and (iii) advise the court of their... Continue Reading →

Distinguishing Domestic Support Obligations from Property Settlement Debts: Comparative Opinions

By: Donald L Swanson Domestic support obligations (e.g., alimony and child support) cannot be discharged in a Chapter 13 bankruptcy. Property settlement debts, by contrast, may be discharged in Chapter 13. Question and an Illustration Answer Question:  What distinguishes a domestic support obligation from a property settlement debt in Chapter 13? Two recent opinions out of South... Continue Reading →

Mediation in New Zealand — A Study on How It’s Done

By: Donald L. Swanson Sometimes it’s helpful, in understanding our own situation, to look at someone else’s. Mediation is a common tool for resolving commercial disputes in New Zealand.  A 2017 study of mediation in New Zealand reveals how it's done there: “From Anecdote to Evidence: The New Zealand Commercial Mediation Market [Fn. 1]. General Findings... Continue Reading →

Are US Trustee’s Increased Quarterly Fees Constitutional?

By: Donald L Swanson The Office of the US Trustee administers the bankruptcy system in these United States.  To fund its efforts, the US Trustee receives quarterly fees from Chapter 11 debtors, which fees are a major (and often a problematic) expense for debtor’s to pay. Back in October 2017, Congress increased the amounts of such... Continue Reading →

Are Emotional Arguments Helpful or Harmful in Mediating Commercial Disputes?

By: Donald L Swanson Settlement = Assessment of Risks + Math I made up this unsophisticated formula decades ago to explain what happens when a negotiated settlement occurs in a commercial dispute. What I’ve found, since then, is that the formula holds true in the vast majority of cases—even when emotions and tempers are on edge.... Continue Reading →

What To Do When No One Supports A Rule The U.S. Supreme Court Wants to Decide: Rodriguez v. FDIC

By: Donald L Swanson What should the U.S. Supreme Court Justices do when, (i) they grant certiorari to resolve a circuit split on whether a rule of law is valid, but (ii) no party to the appeal argues in favor of that rule? That’s exactly the circumstances in Rodriguez v. FDIC, Supreme Court Case No. 18-1269... Continue Reading →

Caucus Inadequacy and the Joint Session Solution for Multi-Party Mediations

  By: Donald L Swanson Let’s say that a mediation among four parties or more is a “multi-party” mediation. Caucus Inadequacy Here’s how a caucus format works—inadequately—in a mediation among four parties: the mediation starts at 9:00 a.m. with a half-hour joint session to set the rules and format, whereupon, the parties split into sequestered conference... Continue Reading →

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