Mediation Continuums: How They Overlap

By: Donald L. Swanson “Joint Session <———> Caucus Only” "Fact Disputes <———> Law Disputes"  A continuum? (Photo by Marilyn Swanson) These are two sets of mediation continuums. Here’s a theory I've heard on how the “joint session” to “caucus only” continuum and the "fact disputes" to "law disputes" continuum overlap in commercial cases.  I'd like to... Continue Reading →

Zoom Mediation Works!

By: Donald L Swanson “All your assumptions on this are wrong.” --A visionary, back in 1999, on why video communications will work. Change It was nearly a decade ago, when I suggested participating in a mandated and far-away mediation by Skype. The Judge said, “No, because face-to-face communication is essential to mediation.” It was nearly a... Continue Reading →

How An Official Committee Member Breaches Fiduciary Duties–And Pays A Price

By: Donald L Swanson Defendant “seriously breached her fiduciary duties” as a member of the Official Committee of Unsecured Creditors. Naylor v. Farrell (In re Farrell), 610 B.R. 317, 323 (Bkrtcy.C.D.Cal. 2019). Facts Here’s what happened: Defendant failed to play by the rules. Debtor filed a voluntary Chapter 11 bankruptcy. Debtor and and his spouse (the... Continue Reading →

Model Local Mediation Rules: A Service of Great Value

By: Donald L. Swanson Every once in a great while, a group of people perform a voluntary service of hard and diligent effort that produces a result of excellence and provides great value to others. That is precisely what a small group of people did in creating model local rules and supporting commentary on bankruptcy mediation.... Continue Reading →

Mandated Mediation: Authorized By Federal Statute

By: Donald L Swanson “Any district court that elects to require the use of alternative dispute resolution . . . may do so only with respect to mediation, . . . “         --From 28 U.S.C. § 652(a)—Alternative Dispute Resolution Act of 1998. The correct view on a Federal court's authority to mandate... Continue Reading →

Are Emotional Arguments Helpful or Harmful in Mediating Commercial Disputes?

By: Donald L Swanson Settlement = Assessment of Risks + Math I made up this unsophisticated formula decades ago to explain what happens when a negotiated settlement occurs in a commercial dispute. What I’ve found, since then, is that the formula holds true in the vast majority of cases—even when emotions and tempers are on edge.... Continue Reading →

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