On Bankruptcy and Mediation
By: Donald L Swanson Ancient History Millenia ago, advanced civilizations flourish around the Mediterranean, across east Asia, and in portions of the Western Hemisphere. Mediterranean and east Asia civilizations communicate and trade, back then, across silk roads but remain isolated from the Western Hemisphere. That isolation continues for a very-long time: until 1492. In the... Continue Reading →
By: Donald L. Swanson Mandatory mediation works. It results in case settlements. And it helps creates a culture for voluntary mediation. But the idea of a mandated mediation is repugnant to some because it violates a "voluntary" ideal. This is unfortunate. Evaluating Mediation The ultimate goal of all civil litigation is this: to resolve disputes under... Continue Reading →
By Donald L. Swanson The U.S. Government continues to prop up a high-price model of higher education, forcing students to bear the brunt of such foolishness! News reports are filled these days with student loan crisis stories. We hear how: --"the number of Americans severely behind on payments on federal student loans reached roughly 4.6 million... Continue Reading →
By: Donald L. Swanson Back in the 1970s, Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals established an experimental mediation program called Civil Appeals Management Plan (“CAMP”) to deal with burgeoning caseloads. 1970s One CAMP feature, implemented for experiment and testing purposes, is the random selection of cases for mandatory mediation. ... Continue Reading →
By: Donald L Swanson On Friday, January 12, 2018, the U.S. Supreme Court granted certiorari in Lamar, Archer & Cofrin, LLP v. Appling (In re Appling), Case No. 16-1215, to resolve an indistinct legal standard. The case is about a statute of frauds for nondischargeability. Generally, a statute of frauds requires that certain promises be in... Continue Reading →
By: Donald L. Swanson 2018 marks the twenty-year anniversary of the Alternative Dispute Resolution Act of 1998 [codified at 28 U.S.C. § 651 et seq., the "ADR Act"]. Preamble The preamble to the ADR Act contains these findings on mediation: --“mediation . . . may have potential to reduce the large backlog of cases now... Continue Reading →
By: Donald L Swanson When ABI’s Commission to Study the Reform of Chapter 11 issued its Final Report in 2014, one creative approach it recommended is to authorize a new bankruptcy position: the "estate neutral." The Final Report says that chapter 11 "needs to offer tools to resolve a debtor’s financial distress." The estate neutral would... Continue Reading →
By: Donald L. Swanson “We have been much struck by the system operated in British Columbia whereby a party can issue a notice to their opponent in a specified form requiring mediation.” “[T]he establishment” of such a system “has led to the growth of informally agreed mediation as a norm” with the formal procedure “only... Continue Reading →
By Donald L. Swanson Individuals can, and often do, file for Chapter 11 bankruptcy. Three professors recently published an article in the ABI Law Review on a ground breaking study of Chapter 11 bankruptcy cases for individual debtors. --The three professors are Richard M. Hynes (University of Virginia; Charlottesville, Va.), Anne Lawton (Lansing, Mich.), and Margaret Howard (Washington &... Continue Reading →
By: Donald L. Swanson “Perhaps no idea has proven more controversial within evolutionary biology than the idea that evolution manifests progress.” --T. Shanahan (7/16/2012) The track-on-a-graph for mediation progress is, without question or controversy, upward! The formal and frequent use of mediation to resolve lawsuits in the U.S. dates back to experimental programs of the... Continue Reading →
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