Theory (i.e., mediator neutrality and party self-determination) gives way to the practical need for achieving a settlement.
Mediating Civil Cases: A Disconnect Between Theory and Practice
Why Early Mediation is More Effective in Bankruptcy Reorganization Disputes than in Regular Commercial Litigation
By: Donald L. Swanson “’Early’ (mediation) is good and usually best”; but “Lawyers are not easily persuaded away from the view that they ‘need more info’ before they engage settlement discussions in mediation”; and “in many cases, they may be right.” --Comment by a mediation professional on a discussion board. I agree with this comment—100%—for regular... Continue Reading →
Mediation: Sometimes A Judge Must Rule Before Parties Will Settle (In re C2R)
Waiting a tad-too-long? By: Donald L. Swanson It happens in the Chapter 11 case of In re C2R Global Manufacturing, Inc., (Case No. 18-30182 in Eastern Wisconsin Bankruptcy Court): the judge must rule before the parties will settle. That may seem a tad-too-late. But it happens, and In re C2R is Exhibit A. Disputes C2R Global... Continue Reading →
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 →
Four Examples of How Mediation Programs Develop and Grow
The progress of bankruptcy mediation is nearly-always upward: toward expanding the use of local mediation rules.
When the Work of Mediation Extends Beyond a Settlement
The Uschold v NSMG opinion provides another illustration of the post-settlement work that mediation can accomplish when a court must weigh-in on the merits of a mediated agreement.
Mediation Can (And Must) Embrace Social Distancing
Mediation must adapt now and embrace the distancing.
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 →
