On Bankruptcy and Mediation
Reflecting (photo by Marilyn Swanson) By: Donald L Swanson A study titled, “What Works,” examines the effects of mediator strategies and behaviors on case outcomes in small claims cases. [Fn. 1] The study gathers information on both the short term (immediately after the mediation occurs) and long term (up to twelve months later) effects of mediator... Continue Reading →
A Caucus? (photo by Marilyn Swanson) By: Donald L Swanson A study [fn. 1] of mediations in small claims cases reaches this conclusion: The over-use of a caucus format is bad for mediation. Findings Specific findings supporting such conclusion include the following.[Fn. 2] In a small claims mediation, a greater percentage of time spent in caucus:... Continue Reading →
From afar? (photo by Marilyn Swanson) By: Donald L Swanson Hypothetical: Your client in a complex Chapter 11 case has a dispute on a core issue with another party. The disputing parties decide that mediation might help resolve their dispute, and they can choose, under local rules, between two types of mediators: a private mediator (i.e.,... Continue Reading →
Keeping options open? (photo by Marilyn Swanson) By: Donald L Swanson We’ve all been there: when faced with alternative courses of action, we make a choice; but time and subsequent developments show we made the wrong choice. So, a hard-knocks rule is this: keep all options and alternatives open and viable for as long as possible;... Continue Reading →
Transforming (photo by Marilyn Swanson) By Donald L. Swanson A study report on mediators is, “Becoming the change we wish to see: The unexpected benefits of conflict resolution work,” by Susan Raines, published January 2018 in Conflict Resolution Quarterly, at 319-327. The author begins the study report like this: “Gather any group of mediators, ombuds, relief... Continue Reading →
Direct discussions! By: Donald L. Swanson Allowing direct discussions between parties, when mediating a commercial case, can be an intimidating—and tricky—proposition. But it is effective when allowed . . . despite obvious concerns. Here are four concerns, about direct discussions between mediating parties, based on four goals of mediation: The first goal is to assure... Continue Reading →
A great idea (photo by Marilyn Swanson) By Donald L. Swanson “Mandatory mediation” is a self-explanatory term. It means this: --A court (or a mediator with authority from the court) orders disputing parties to participate in a mediation process. There seems to be a reticence in the bankruptcy world, generally, toward mandatory mediation. I'm not... Continue Reading →
Inherent power (Photo by Marilyn Swanson) By Donald L. Swanson “[O]rdering mandatory mediation is a proper exercise of a district Court’s inherent power.” That’s the “core holding” of the U.S. First Circuit Court of Appeals in its In re Atlantic Pipe Corp. opinion.[Fn.1] What follows is a summary of that opinion. Facts The dispute is over... Continue Reading →
Advocating for a position (photo by Marilyn Swanson) By: Donald L Swanson “Neutral Offering Solutions had long-term negative associations” in mediation. That’s a finding from a study of small claims mediations, titled “What Works” [Fn. 1] “Neutral Offering Solutions” refers to a mediator offering ideas for solutions and then advocating for those ideas. Study’s Conclusion In... Continue Reading →
Alive and well (Photo by Marilyn Swanson) By: Donald L Swanson You don’t see this very often: a dispute over the confidentiality of mediation communications. But such a dispute recently happened in In re Barretts Minerals, Inc., Case No. 23-90794, Southern Texas Bankruptcy Court. And the result is this: mediation confidentiality remains alive and well. In... Continue Reading →
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