Reflecting Feelings and Interests — A Mediation Study

By Donald L. Swanson A 2016 report on a mediation study looks at how a mediator reacts with participants.  Specifically, the study evaluates what happens when a mediator: --reflects back to participants what the participants themselves express --focuses on a participant's feelings/emotions --focuses on a participant's underlying interests. Findings When a mediator does such things, participants... Continue Reading →

An Ancient Bankruptcy Law in China

By: Donald L. Swanson Centuries ago (during the 1200’s) the Mongols ruled China. Mongol law in China "provided for declarations of bankruptcy.”  Here are some details: —“no merchant or customer could declare bankruptcy more than twice as a way to avoid paying debts”; and —“On the third time he faced the possible punishment of execution.” [Fn.... Continue Reading →

Mediation Confidentiality at Second and Ninth Circuits: Stability v. Who Knows?

By: Donald L Swanson You’d expect, these days, that mediation confidentiality is enforced everywhere. But that expectation is wrong. Bankruptcy Hypothetical Let’s start with a bankruptcy hypothetical: Debtor is a small business in Chapter 11 and hopes to reorganize—not liquidate. Debtor reaches a mediated settlement with a large creditor, removing an obstacle to reorganization. Mediating parties... Continue Reading →

A State-Sanctioned Fraudulent Transfer?

By: Donald L Swanson The majority’s opinion “permits Vandelay to reap a windfall that borders on the obscene.” Hon. William B. Cassel, Nebraska Supreme Court Justice, Dissenting in Wisner v. Vandelay Investments, L.L.C. (Decided 8/24/2018). You’re not going to believe this . . . seriously. Facts of the Case In 2014, Vandelay Investments acquired 650 acres... Continue Reading →

Special Settlement Problems When Defendant Claims Poverty or Non-Collectibility

By: Donald L. Swanson “I’d be happy to pay the million dollars I owe you. The problem is that I have only two of them.” --A defendant’s claim of poverty and non-collectibility in settlement negotiations. A defendant's poverty/non-collectibility claim creates an interesting dynamic in mediation and other negotiations. And that’s true whether the defendant is an... Continue Reading →

Renewing the Constitution’s “Bankruptcies” Clause for Bankruptcy Court Jurisdiction

By: Donald L Swanson Back in 1966, when the Bankruptcy Act of 1898 was newly-eligible (in human years) for Social Security, the U.S. Supreme Court issued a 7 to 2 majority opinion in Katchen v. Landy, 382 U.S. 323 (1966). The Katchen opinion is founded in the U.S. Constitution’s “Bankruptcies” clause and authorizes bankruptcy courts to... Continue Reading →

Mediation Confidentiality: Limits on Waiving It

Competing and Turbulent InterestsBy Donald L. Swanson The case is In re Anonymous, 283 F.3d 627 (4th Cir. 2002).  It’s an attorney discipline action over breaches of mediation confidentiality in an arbitration.  The dispute in arbitration is between an attorney and his former client over litigation expenses.  This dispute arose after the attorney and client concluded... Continue Reading →

Appeals to Bankruptcy Appellate Panels and “Sandbagging”

By: Donald L. Swanson One of the best innovations in the U.S. bankruptcy system is creation of bankruptcy appellate panels (“BAPs”), as a division of the U.S. circuit courts of appeals.  BAPs hear appeals of bankruptcy court decisions. Currently, there are five BAPs, one in each of the following circuits: First, Sixth, Eighth, Ninth and... Continue Reading →

How a Judge Makes Mediation Work: Judicial Oversight in Bankruptcy

By Donald L. Swanson “Even if a plan emerged out of mediation that unfairly discriminated against financial creditors, it’s the court’s responsibility to block the deal.” -- Judge Steven Rhodes, as reported by Nathan Bomey in “Detroit Resurrected: to Bankruptcy and Back.” Judge Rhodes is defending his mediators in the City of Detroit bankruptcy against... Continue Reading →

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