On Bankruptcy and Mediation
By: Donald L. Swanson (d) Confidentiality Provisions.— Until such time as rules are adopted under [28 U.S.C. §§ 2071 et seq.] providing for the confidentiality of alternative dispute resolution processes . . . , each district court shall, by local rule adopted under section 2071(a), provide for the confidentiality of . . . dispute resolution... Continue Reading →
By: Donald L. Swanson We all make assumptions -- every day -- about many things. Our false assumptions are our illusions. There are many illusions about mediation, most of which place restrictions on the role and effectiveness of the mediation process. We all have them. Fortunately, we now have solid evidence to dispel some of... Continue Reading →
By: Donald L. Swanson It's a beautiful scene: Federal courts applying and enforcing their local rules on mediation confidentiality. --Nearly all U.S. District Courts and U.S. Circuit Courts of Appeals, and many Bankruptcy Courts, have such local rules. But then the Ninth Circuit Court of Appeals comes along with a bombshell. It suggests that local... Continue Reading →
By: Matthew Gillespie For many, if not most of us, our homes are our biggest assets. The inverse of this is also true – our mortgages are often our biggest liabilities. It makes sense, then, that in Chapter 13 consumer bankruptcies, a debtor’s mortgage can have a major impact on the success (or lack thereof)... Continue Reading →
Guest Article By John G. Loughnane, Partner Nutter McClennen & Fish LLP The Massachusetts Appeals Court recently issued an opinion in ZVI Construction Co. v. Levy, et al., 90 Mass. App. Ct. 412 (2016), refusing to override the terms of a written confidentiality agreement entered into between parties to a mediation. The opinion is noteworthy because it refuses... Continue Reading →
By: Donald L. Swanson "Chapter 11 plans are inherently suitable for mediation. After all, chapter 11 success is generally defined as a confirmed consensual plan of reorganization, not a contested confirmation battle; that is, it is a settlement, not a victory. " --Hon. Lisa Hill Fenning, retired bankruptcy judge and Partner at Arnold... Continue Reading →
By: Donald L. Swanson Chapter 11 Debtor successfully mediates confirmation disputes with a half-dozen creditors. Now, a hold-out creditor moves for discovery of the mediation communications in an effort to torpedo plan confirmation. The mediating parties come to realize that their Bankruptcy Court has no local rule requiring mediation confidentiality. And, of course, there is... Continue Reading →
By: Donald L. Swanson “The civil Appeals Management Plan (CAMP), now operating in the United States Court of Appeals for the Second Circuit, is an innovative set of reforms in the appellate process. . . . This is the first time the [mediation] procedure has been implemented systematically.” --1977 Report of the Federal Judicial Center,... Continue Reading →
By: Donald L. Swanson More than three years of wasted litigation: that’s what it looks like from the outside. The parties had been fighting, in 2012 and early 2013, about a management agreement for operating a casino. But in June of 2013 the fight changes from a dispute over the management agreement to a dispute... Continue Reading →
By: Donald L. Swanson The response of the [American Bar] Association to that 1976 re-examination of Pound’s criticism was immediate . . . One very important program was aimed at developing alternative methods for resolving disputes. --Chief Justice Warren E. Burger, February 12, 1984. Roscoe Pound, a young man from Nebraska in 1906, became... Continue Reading →
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