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 →

Mediation — And the Role of the Small Business Trustee

By: Donald L Swanson “Those with business, managerial, consulting, mediation and operational experience are encouraged to apply.” --From “Solicitation” by U.S. Trustee for Applicants to Serve as Subchapter V Trustees (emphasis added) Back in August of this year, the Small Business Reorganization Act of 2019 became law. It’s effective date is 180 days later—February 19, 2020.... Continue Reading →

Empirical Studies and the Mediator’s Proposal — A Portal to Decision

By: Donald L. Swanson Let’s try combining a couple empirical studies on unrelated matters to support the following proposition: --The “mediator’s proposal,” as a form of choice delegation, can help parties reach settlement.  The proposal becomes a portal or entryway to decision. First Study: Delegating Difficult Choices The first study is titled, “Delegating Decisions: Recruiting Others... Continue Reading →

When Impasse on a Legal Issue Impedes Mediation: An Example of Effective Action

By: Donald L Swanson There is often a tension in mediation that goes something like this: Party of the first part says: We win on a technical legal issue—100% certainty! Party of the second part responds: You do not win on that issue—100% certainty! Party of the first part reacts: Do so! Party of the second... Continue Reading →

Bankruptcy Mediation Training Course — December 2019

  By:  Donald L. Swanson The American Bankruptcy Institute and St. John’s University School of Law do an annual forty-hour [yes, that’s 40-hour] “Bankruptcy Mediation Training” course in New York City.  The next course is coming soon -- it’s scheduled for December 8 – 12, 2019.  Here is a schedule and sign-up link. I took... Continue Reading →

Striking the Answer and Entering Default: A Sanction for Blowing Off Mediation

By: Donald L. Swanson The case is Trujillo v. Tak (In re Tak), Case No. 18-ap-01217 (Bankry. C.D. Cal.). The Case Celia Trujillo sues Debtor in Superior Court of the State of California, County of Los Angeles, at Case No. BC672613, for sexual harassment and discrimination. In response, Debtor files Chapter 7 bankruptcy. Then, Celia Trujillo... Continue Reading →

Mediating a Feud: The Problem of Envisioning Future Effects

By Donald L. Swanson Feuding parties are blinded by their feud. And they cannot envision the future of their feud with accuracy. An Ancient Illustration from London A recent essay [Fn. 1] provides details of a multi-year feud between London-area grocers, back in the early 1600s. That feud involved two lawsuits, a criminal complaint, and extensive... Continue Reading →

Getting Mediators Approved and Paid in Bankruptcy

By Donald L. Swanson Every now and then a mediator gets stiffed on fees.  It doesn’t happen often.  But it happens.  And it’s always a shame. Mediators of bankruptcy disputes have an additional payment-related hurdle they must navigate.  The hurdle is this: --Advance court approval is required for getting paid from bankruptcy funds. Statutory Requirements... Continue Reading →

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