Tag: Bankruptcy Mediation

Mediating Bankruptcy Reorganization Disputes v. Mediating Commercial Lawsuit Disputes (In re Caesars)

Caesars (photo by Marilyn Swanson) By: Donald L Swanson Mediating bankruptcy reorganization disputes is dramatically different from mediating commercial lawsuit disputes.  I’ll try to explain. Mediating Commercial Lawsuit Disputes Commercial litigation tends to go through these broad phases: pleadings; discovery; dispositive motions; mediation; trial; and appeal. Mediation in commercial lawsuits tends to be a one-and-done affair:... Continue Reading →

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An Old Mediation Controversy—Based on Misunderstandings & Overreactions? (In re Caesars Entertainment)

Caesars (photo by Marilyn Swanson) By: Donald L Swanson In re Caesars Entertainment is one of the major-and-successful bankruptcy cases in the history of these United States.  The Caesars bankruptcy was filed on January 15, 2015, in the Northern Illinois Bankruptcy Court with $18 billion of debt.  It achieved a confirmed plan two years later (on... Continue Reading →

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“Eliciting Participant Solutions” + “Reflecting” = An Effective Mediator’s Tool (A Study)

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 →

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Over-Use Of Caucus Format In Mediation Is A Bad Thing? (A Study)

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 →

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Judicial Mediator: Do You Want A Judge From Your Home District Or From Afar?

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 →

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A Hard-Knocks Rule: Keep All Options Open For As Long As Possible (A Study)

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 →

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Mediators And Personal Transformations (A Study)

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 →

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Mediating Commercial Cases With Direct Discussions Between Parties — An Effective Approach

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 →

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Mandatory Mediation: Five Illustrations of How It’s a Great Idea

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 →

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Mandatory Mediation Orders Are Within A Court’s Inherent Power (In re Atlantic Pipe)

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 →

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