Settlor’s Regret in Mediation — After It’s Too Late to Back Out

By: Donald L. Swanson “There was a settlement . . . many arguments have been constructed to get around that unfortunate fact, but it’s a fact.” --Bankruptcy Judge, during hearing on Motion to enforce a mediated settlement in Lehman Brothers bankruptcy. It’s common in business bankruptcies for the estate to pursue preference and fraudulent transfers claims.  Sometimes,... Continue Reading →

“I’m Not Comfortable With Requiring Mediation” = Unfounded Squeamishness

By: Donald L Swanson “Any district court that elects to require the use of . . . alternative dispute resolution in certain cases may do so . . . with respect to mediation.” Alternative Dispute Resolution Act of 1998 (28 U.S.C. § 652(a)). “I don’t feel comfortable requiring parties to mediate.” Ubiquitous sentiment among judges. I... Continue Reading →

Mediation and Early Neutral Evaluation in Consumer Disputes — England, Wales And ABI Consumer Commission

By Donald L. Swanson England and Wales have a Civil Justice Council that, in 2016, formed an ADR Working Group to "review the ways in which" mediation is "encouraged and positioned within the civil justice system."  In October, 2017, the Working Group issued its "Interim Report." Low Value Cases and Litigants Without Means One focus of... Continue Reading →

Contingent Fees or Success Fees for Mediators: Why Not?

By: Donald L. Swanson I have a new LinkedIn friend, Mark Winters from the U.K., who’s developed a mediation practice within an unusual context. And he’s making it work. Since the practice arose from his own creativity and out of unusual circumstances, he’s unbounded by common norms and can do creative things. One creativity is this:... Continue Reading →

2017 ABA Report on Research of Mediation Techniques — and the Need for Research on Bankruptcy Mediation

By Donald L. Swanson On June 12, 2017, the American Bar Association’s Section of Dispute Resolution published its “Report of the Task Force on Research on Mediator Techniques.” Notably, this report makes no reference to any research on bankruptcy mediation — not even a single study. The following article consists of four parts: --Summary of the... Continue Reading →

Defining and Illustrating “Statement Respecting Financial Condition” for Nondischargeability: U.S. Supreme Court (Appling Case)

By: Donald L. Swanson “a statement about a single asset can be a ‘statement respecting the debtor’s financial condition’ under §523(a)(2) of the Bankruptcy Code.” U.S. Supreme Court, Lamar, Archer & Cofrin, LLP v. Appling, Case No. 16-1215, June 4, 2018. One of the frequently-mediated types of disputes in bankruptcy is nondischargeability under 11 U.S.C. §... Continue Reading →

Heavy Penalties for Sabotaging a Court-Ordered Mediation: “Unclean Hands”

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 →

ADR Act of 1998: Defiance in Chicago’s Bankruptcy Court?

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 →

Mediation Confidentiality Protection: A “Very High Bar to Overcome”

By: Donald L. Swanson The legal opinion is In re Residential Capital, LLC, 536 B.R. 132 (Bankr. S.D.N.Y.  2015). The Facts, Including Mediation ResCap bought residential mortgage loans and sold those mortgage loans to others. When a mortgage loan crisis hits, a decade or so ago, many of these mortgage loans go bad.  Those who bought... Continue Reading →

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