On Bankruptcy and Mediation
By: Donald L. Swanson We live and work in a market economy, here in these United States. The market is our economic judge: it validates—or invalidates—business decisions, and it picks winners and losers. The market is an efficient, impartial and unbiased judge. But it is also cruel and unforgiving. The result is that many businesses succeed.... Continue Reading →
By: Donald L. Swanson Like snowflakes and fingerprints, no two mediations are alike. And the mediator, in any given dispute, must adjust to the peculiarities of the issues and parties at hand. Take, for example, differences between mediating what I’ll call “one-off disputes” vs. “relationship disputes” in business contexts. Definitions Let’s say, for discussion purposes, that:... Continue Reading →
By: Donald L. Swanson For starters, see my "Disclaimer" below. “The Torah is the Hebrew Bible,” consisting of the books of Genesis, Exodus, Leviticus, Numbers, Joshua, Psalms, Book of Ruth, etc.; and the Talmud “is the compilation of the historical rabbis ‘discussing’ or ‘debating’ what the Torah means.” [Fn. 1] The Mishnah is “an edited record”... Continue Reading →
By: Donald L. Swanson One of the crucial rules of mediation is this: all pertinent parties need to be included in the mediation session. That’s because excluded parties can blow-up a mediated deal. Bankruptcy System In bankruptcy, interested parties are everywhere—and they can’t all be included in every mediation. That’s a problem. So, the Bankruptcy Code... Continue Reading →
By Donald L. Swanson Two long-standing members of the U.S. Supreme Court—each served three decades—are recently departed from the Bench: Justice Antonin Scalia served from September 26, 1986, until his death on February 13, 2016; and Justice Anthony Kennedy served from February 18, 1988, until his retirement on July 31, 2018. Both of these Justices had... Continue Reading →
By: Donald L Swanson The use of practicing attorneys -- instead of sitting judges -- to serve as mediators is an early-innovation from Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals. This innovation occurs, back in the 1970s, amid “wide disagreement” about the effectiveness of attorneys as mediators. Back then, Judge... Continue Reading →
By: Donald L Swanson Bankruptcy laws in these United States have always struggled for acceptance by the judiciary. Judicial Restrictions on Congress’s Bankruptcy Power Federal courts, in many respects since 1800, have tried to restrict the bankruptcy power granted to Congress by the U.S. Constitution [Fn. 1]. For example: --In the 1800s and early 1900s, courts... Continue Reading →
By: Donald L. Swanson What follows is confusing and disorienting . . . and a little disturbing. A 2017 academic article has this title: “The Surprising Effectiveness of Hostile Mediators” [Fn. 1]. And it reaches this conclusion: “As in prior studies, negotiators were more willing to reach agreement after interacting with a hostile mediator than a... Continue Reading →
By: Donald L. Swanson Imagine you’re at an auction and multiple parties are bidding on an item. At a certain price, all bidders drop out except two. These two keep bidding, and the price goes up. One bidder finally prevails—at a very high price. This happens. It’s called competitive bidding at a fair auction. This... Continue Reading →
By: Donald L Swanson Mediation in civil litigation, here in the States, typically occurs as discovery winds down and as a trial date is in the offing. And, typically, mediation happens at the initiative of the parties—not by court referral. That’s how it’s done. Singapore Study But there are other ways to do it. In Singapore,... Continue Reading →
MEDIATBANKRY 