On Bankruptcy and Mediation
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 →
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 →
The progress of bankruptcy mediation is nearly-always upward: toward expanding the use of local mediation rules.
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 must adapt now and embrace the distancing.
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 →
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 →
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 →
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 →
