On Bankruptcy and Mediation
By Donald L. Swanson “Marley was dead, to begin with . . . dead as a doornail.” Charles Dickens, A Christmas Carol About a year ago, I published this linked article declaring, “the ‘public rights’ doctrine for bankruptcy court jurisdiction, while always tenuous, in now dead and buried.” Now, I’m restating that declaration—this time based on... Continue Reading →
By: Donald L. Swanson Voluntary mediation programs “attract relatively few cases, even when offered at low or no cost.” --Dr. Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 Willamette Law Review 565 (1997). An Empirical Study Dr. Wissler’s empirical comparison of voluntary v.... Continue Reading →
By: Donald L. Swanson The student loan crisis and potential legislation to solve it are in the news these days. Lots of ideas are bandied about on what legislation might look like. Top Priority There is a top priority for such legislation that dwarfs all others. The number one priority, bar none (and it’s not... Continue Reading →
By Donald L. Swanson “The purpose of the unclean hands doctrine is not to protect the defendant – it is to protect the court from becoming an aider and abettor of iniquity.” Baek v. Halvorson (In re Halvorson), 581 B.R. 610, 637 (Bankry.C.D.Cal. 2018) Never do this: sabotage a court-ordered mediation. The Baek v. Halverson case shows... Continue Reading →
By: Donald L. Swanson In our uncommonly vicious and partisan political culture, it’s refreshing to hear oral arguments at the U.S. Supreme Court on a non-partisan and apolitical issue. Here’s one: --Oral arguments held on April 17, 2018, in the bankruptcy case of Lamar, Archer & Cofrin, LLP v. Appling, Case No. 16-1215 [here’s the transcript] .... Continue Reading →
By: Donald L. Swanson Here's the local rule (adopted in November 2017) allowing mediation in Chicago's Bankruptcy Court (emphasis added): RULE 9060-1 MEDIATION AND ARBITRATION Except to the extent required by the Bankruptcy Code or Federal Rules of Bankruptcy procedure, parties to an adversary proceeding or contested matter need not request court approval before pursuing... Continue Reading →
By: Donald L. Swanson A new, and unanimous, decision from the U.S. Supreme Court is Hall v. Hall, Case No. 16-1150 (Decided March 27, 2018). A first read of this opinion seems like a, “What’s the big deal here?” The opinion: Is about a technical issue of appeal procedure; Reaches back, for historical authority, to... Continue Reading →
By: Donald L. Swanson “It’s doubtful that a district court can augment the list of privileges by local rule” because “privileges are created by federal common law.” —The Facebook, Inc. v. Pacific Northwest Software, Inc., 640 F.3d 1034 (9th Cir. 2011). The Facebook case deals with evidence on “what was said and not said” during mediation. In Facebook,... Continue Reading →
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 →
