On Bankruptcy and Mediation
By: Donald L. Swanson On April 3, 2018, Justices Kennedy and Thomas issue this Statement for the U.S. Supreme Court in Deutsche Bank v. McCormick, Case No. 16-317 [photo of entire Statement is above]: “consideration of the petition for certiorari will be deferred . . . given the possibility that there might not be a quorum... Continue Reading →
By: Donald L. Swanson The mediation privilege "provides for a broad screen of protection that renders confidential all communications . . . made as part of the mediation process." Grubaugh v. Blomo ex rel. County of Maricopa, 238 Ariz. 264, 359 P.3d 1008 (App. 2015). This Grubaugh v. Blomo case exemplifies a mediation privilege, created... Continue Reading →
By: Donald L. Swanson “Any judicial process brought about as the direct consequence of . . . a political struggle is political.” “Score-settling, blood-letting, revenge and political calculation played a crucial role in these and many other post-war trials and purges.” Tony Judt, Postwar: A History of Europe Since 1945, at 49 (Penguin Press 2005). One... Continue Reading →
By: Donald L. Swanson “[I]f research were to suggest that litigants want to be included in the resolution process but do not desire free verbal exchanges between the parties,” how should ADR providers respond? --Donna Shestowsky in, “How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study, 49 U.C. Davis L. Rev. 793, 797 (2016).... Continue Reading →
By: Donald L. Swanson Whenever a court goes out of its way to say in an opinion, “We aren’t deciding issues X and Y,” it’s time to take notice. The omitted issues must be significant, in some way, to what’s being decided; otherwise, there’s no reason to mention them. And when the opinion is from the... Continue Reading →
By: Donald L. Swanson The Alternative Dispute Resolution Act of 1998 ("ADR Act") is celebrating its twenty-year anniversary this year. It's impact has been highly effective -- but with some less-than-positive results. This article is about the latter. The ADR Act provides in 28 U.S.C. § 652(d): "Until such time as rules are adopted under... Continue Reading →
By: Donald L Swanson A student loan cannot be discharged in bankruptcy, unless the loan “would impose an undue hardship on the debtor and the debtor’s dependents.” --11 U.S.C. § 523(a)(8) So, what qualifies as “undue hardship” under § 523(a)(8)? --You might think that an, “I can’t pay both rent and child care, let alone student... Continue Reading →
By: Donald L. Swanson For everyone who believes that mediators should facilitate and not evaluate, you’re gonna’ love this one – or maybe not! The study report is, “Changing Minds: The Work of Mediators and Empirical Studies of Persuasion,” 28 Ohio St. J. on Disp. Resol. 263 (2013). It's prepared by these two professors: --James H.... Continue Reading →
By: Donald L. Swanson “[T]he Supreme Court has time and time again held: where parties have agreed to arbitration, . . . the agreement of the parties is to govern. There is no reason to think that, with time, the bankruptcy courts will not get there too.” --Collier on Bankruptcy, ¶ 9019-05 (15th Ed. 1998). Bankruptcy... Continue Reading →
By: Donald L. Swanson The legal opinion is In re Residential Capital, LLC, 536 B.R. 132 (Bankr. S.D.N.Y. 2015). The Facts, Including Mediation ResCap bought residential mortgage loans and sold those mortgage loans to others. When a mortgage loan crisis hits, a decade or so ago, many of these mortgage loans go bad. Those who bought... Continue Reading →
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