Mediation and Early Neutral Evaluation in Consumer Disputes — England, Wales And ABI Consumer Commission

By Donald L. Swanson England and Wales have a Civil Justice Council that, in 2016, formed an ADR Working Group to "review the ways in which" mediation is "encouraged and positioned within the civil justice system."  In October, 2017, the Working Group issued its "Interim Report." Low Value Cases and Litigants Without Means One focus of... Continue Reading →

Business Owners Shifting Risks of Failure to Trade Creditors: Solutions are Needed

By Donald L. Swanson “Lending to the most highly indebted companies in the U.S. and Europe is surging.”— Wall Street Journal [Fn. 1] When a large business files for bankruptcy, there is one group that almost always suffers. It is a group with little-to-no power. It is the unsecured trade creditors. It is those that supply... Continue Reading →

Contingent Fees or Success Fees for Mediators: Why Not?

By: Donald L. Swanson I have a new LinkedIn friend, Mark Winters from the U.K., who’s developed a mediation practice within an unusual context. And he’s making it work. Since the practice arose from his own creativity and out of unusual circumstances, he’s unbounded by common norms and can do creative things. One creativity is this:... Continue Reading →

Entrepreneurs in Bankruptcy Deserve Respectful Treatment, Not Punishment (In re Romero)

By: Donald L Swanson Many people live the American Dream. They’ve started a business and are succeeding. They’re what makes the U.S. economy work. But bad things can—and do—happen to them: things like product obsolescence, economic downturn, health problems, a costly mistake, bad luck. Such things can destroy their Dream and can destroy the entrepreneurs themselves.... Continue Reading →

2017 ABA Report on Research of Mediation Techniques — and the Need for Research on Bankruptcy Mediation

By Donald L. Swanson On June 12, 2017, the American Bar Association’s Section of Dispute Resolution published its “Report of the Task Force on Research on Mediator Techniques.” Notably, this report makes no reference to any research on bankruptcy mediation — not even a single study. The following article consists of four parts: --Summary of the... Continue Reading →

Inequality at U.S. Supreme Court: Administrative Agencies v. Bankruptcy Courts (Lucia v. SEC)

By: Donald L. Swanson “Mom always liked you best.” --Smothers Brothers. I finished reading the U.S. Supreme Court’s Lucia v. SEC opinion (decided June 21, 2018). And I’m irritated: the entire situation is just-not-fair to bankruptcy courts and judges. --It’s obvious that the U.S. Supreme Court always liked judicial authority of administrative agencies, like the Securities... Continue Reading →

How to Fail as a Mediator

By:  Donald L. Swanson We explore “the ways in which” unsuccessful mediators “failed to satisfy” the expectations of their mediating parties. Prof. Stephen B. Goldberg and Margaret L. Shaw in a 2008 report titled, “The Secrets of Successful (and Unsuccessful) Mediators.” In the “unsuccessful mediators” portion of their study, Prof. Goldberg and Ms. Shaw follow-up... Continue Reading →

Student Loans: “Best Value”(?!), An Erroneous Idea, and Next Steps

By: Donald L. Swanson “We don’t want loans.  We want grants!”      —Yours truly, circa 2000s, on paying for college "We are creating a 'lost generation' of young adults; they're overwhelmed by their student loans!"  —Recent comment from a friend This article identifies two things that are wrong with our student loan system (Exhibits “A”... Continue Reading →

Gotta Trust the Mediation Process

By: Donald L. Swanson If there’s anything the history of mediation tells us, it’s this: --We’ve gotta trust the process. Here’s an example, that’s happening right now, of how a failure to trust the mediation process creates issues: In re Las Cruces Country Club, Inc., Case Nos. 16-12947 & 16-12947-j7 (Bankry., D. New Mexico) (the debtor... Continue Reading →

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