On Bankruptcy and Mediation
By: Donald L. Swanson The case is MF Global Holdings LTD. v. PricewaterhouseCoopers LLP, Case No. 14-cv-2197 in the U.S. District Court for the Southern District of New York. Hon. Victor Marrero is the presiding Judge. This case concludes by settlement, last week, in the middle of trial. Claims Asserted Plaintiff asserts in this lawsuit... Continue Reading →
By: Donald L. Swanson Can mediation confidentiality be waived? The answer is, “Yes.” --That’s according to the U.S. Ninth Circuit Court of Appeals, from an unpublished “Memorandum” decision in Milhouse v. Travelers Commercial Insurance Co., Case No. 13-56959, 13-57029 (9th Cir., Feb. 23, 2016). Facts The Milhouse residence, located in California, had been destroyed in... Continue Reading →
By: Donald L. Swanson A Staffing/Caseload Problem We have a staffing and caseload problem that's waiting-to-happen in the bankruptcy world: The number of bankruptcy filings is down, systemwide, and has been for several years. And budget pressures are on the increase. As a result, bankruptcy vacancies (e.g., for judgeships, clerkships, panel trustee positions, clerk of... Continue Reading →
By Donald L. Swanson A mediator is, by definition, a "neutral." Neutrality seems to be a straight-forward concept: it means not-taking-sides. But not-taking-sides is, apparently, not all that simple. Check out this excellent article and this fine series of essays on the subject. Efforts to define or explain "neutrality" often get bogged down. Sometimes, new... Continue Reading →
By: Donald L. Swanson “Leadership is a perpetual exercise in managing conflict.” --Morris Shechtman, 2003 A 2016 report on a mediation study evaluates and compares the effects on conflict of: (i) mediators who elicit solutions from parties in conflict, and (ii) mediators who offer opinions and solutions to the parties in conflict. Mediator Eliciting Solutions from Parties... Continue Reading →
By: Donald L. Swanson There is “no mutual meeting of the minds concerning the terms” of the mediated and Court-approved settlement agreement. Therefore, the agreement “is not an enforceable contract.” --In re Singh, Case No. 15-02159, Doc. 33 (Bankry. N.J., Oct. 5, 2016). Procedural Background Two adversary proceedings are filed in the Chapter 7 case... Continue Reading →
By: Donald L. Swanson The concepts of “failure” and “success” in a mediation typically refer to whether a settlement agreement is achieved during the mediation session. I’ve always felt uneasy about the use of such “failure” and “success” terms in this way. --I can’t quite put a finger on the source of unease. But it’s like... Continue Reading →
By: Donald L. Swanson “What do empirical studies tell us about court mediation”? This question is asked and answered in a 2004 article. The authors of the article are examining “empirical data” and looking for “best practices” in programs that mediate non-family civil matters. The practices they identify as “best” are those that promote “regular... Continue Reading →
By: Donald L. Swanson Here’s an experience that’s common to all trial attorneys. We’re working in our litigation War Room. Trial is scheduled to begin in ten days. Our focus on trial preparations is intense. But then the phone rings. It’s an attorney on the other side with a settlement offer. The offer is a... Continue Reading →
By: Donald L. Swanson “There is nothing new under the sun.” --Ecclesiastes 1:9 My first-hand knowledge of China is limited: I’ve traveled to Beijing a couple times, spent time (both there and here) with Chinese citizens, practiced law with a Chinese national, etc. But here is something I’ve never understood: --How are personal and business... Continue Reading →
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