The ADR Spectrum: Subchapter V Adds A New / Unique ADR Role

The ADR Spectrum By: Donald L Swanson Alternative dispute resolution (“ADR”) has always referred to the use of a neutral third party to help resolve disputes.  But the recent addition of Subchapter V to the Bankruptcy Code has changed that.  I’ll try to explain. Alternative Dispute Resolution Act of 1998 28 U.S.C. § 651(a) is part... Continue Reading →

Judge Kornreich: On Judicial Mediators And Private Mediators (An Interview) By: Donald L Swanson The above interview talks about mediators in general and about judicial mediators (i.e., a sitting judges) and private mediators more specifically; and it offers suggestions for practitioners on choosing a mediator. Hon. Louis H. Kornreich (Ret.) is well-qualified to speak on such matters because of his, (i) long and distinguished service... Continue Reading →

Mediating Discharge Disputes—A Tough Task

A tough task (photo by Marilyn Swanson) By Donald L. Swanson Lawsuits opposing discharge are tough, to begin with. That’s true whether the action is under Sec. 523 (opposing discharge of the plaintiff’s claim) or under Sec. 727 (opposing discharge of all claims). Here are some reasons why: A revenge-type motivation is commonly involved, since all... Continue Reading →

Court Order For Mediation Of Plan Confirmation Disputes (In re Garrett)

A mediation session? (photo by Marilyn Swanson) By: Donald L Swanson Every now and then, something happens that can serve as a model or form or checklist for similar situations.  Chapter 11 plan confirmation disputes are often complex and involve multiple parties.  In the case of In re Garrett Motion, Inc., (Case No. 20-12212, S.D.N.Y. Bankruptcy),... Continue Reading →

Study: Early Referrals To Mediation, With Opt-Out for Good Cause, Are Effective

A courthouse (photo by Marilyn Swanson) By: Donald L Swanson When an opt-out for good cause exists, early referral of a case to mediation facilitates settlement. --This conclusion is from a “large sample” study of mediations involving the federal government as party defendant. The “large sample” study is reported as, “Dispute Resolution and the Vanishing Trial:... Continue Reading →

Mediation: Persisting Despite Early Failures (Kellogg v. Progressive)

Persisting through early failures (photo by Marilyn Swanson) By: Donald L. Swanson “Failure” in a mediation is difficult to define.  For hypothetical examples: Is it a “failure” when a lawsuit fails to settle in a mediation session?Is it a “failure” when a lawsuit fails to settle in a second mediation session?Is it a “failure” when, (i)... Continue Reading →

There are Problems Mediation Can’t Solve (Ripa v. Perfetti)

By: Donald L Swanson Lots of things are wrong with the case of Ripa v. Perfetti [Fn. 1]. The ills start with this fact: all parties are pro se.  The case illustrates, once again, that limitations exist on the problems mediation can solve. In this case, a frustrated Bankruptcy Judge encourages the parties to mediate: one side... Continue Reading →

Bad Automatic Stay Form & Violating the Spirit Of A Mediation Order (In re Nilhan)

Bad form: Angus cattle on a road at dusk! (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is dated November 9, 2020, and appears in the jointly administered cases of In re Nilhan Developers, LLC, Case No. 15-58443 (Northern Georgia Bankruptcy Court) (Doc. 206), and In re Bay Circle Properties, LLC, Case No. 15-58440... Continue Reading →

When To Start Drafting the Mediation Settlement Agreement?

Getting started (Photo by Marilyn Swanson) By: Donald L Swanson The American Bar Association published an article titled, “Draft the Settlement Agreement First,” by John Bickerman. [Fn. 1]  The article begins with the following: “One of the most effective techniques I know and use as a mediator is to begin negotiating the terms of the settlement agreement before... Continue Reading →

A Study of Anger and Its Effects — Implications for Mediation?

What is his perspective? (photo by Marilyn Swanson) By: Donald L Swanson Have you ever been in a mediation—or other negotiation context—where one party blows-up in a fit of anger?  And wondered about the effect of that moment on the negotiation effort? A 2019 study on "Losing your temper" shows that “anger reduces perspective-taking.” [Fn. 1]... Continue Reading →

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