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 →

Mediation: The Go-To Process for Large-Scale Sexual Abuse Claims in Bankruptcy

By: Donald L. Swanson Mediation has become the go-to process for dealing with large-scale sexual abuse claims in bankruptcy. The latest example is the Chapter 11 case of In re USA Gymnastics, filed on December 5, 2018, at Case No. 18-09108, in the Southern Indiana Bankruptcy Court. Background USA Gymnastics is where Larry Nassar volunteered as... Continue Reading →

A Study on Delegating Responsibility for Important Decisions: Application to Mediation?

By: Donald L. Swanson Consumers often delegate the responsibility for making difficult decisions to others. This is the finding of a recent study by two college professors [Fn. 1]. Avoiding Regret v. Avoiding Disappointment The study distinguishes between a consumer’s desire to avoid “regret” and to avoid “disappointment.” While both regret and disappointment “capture a person’s... Continue Reading →

“Can’t Get No Satisfaction” From, (i) Late-In-A-Lawsuit Mediation, and (ii) Type of Mediator

https://m.youtube.com/watch?v=nrIPxlFzDi0 By: Donald L Swanson “Satisfaction” of parties to a mediation is difficult to describe, let alone measure. But a recent study published by the Harvard Negotiation Law Review [Fn. 1] examines the “satisfaction” of mediating parties.  It identifies two items that have a significant effect on a party's “satisfaction”: (i) timing of referral, and (ii)... Continue Reading →

The Problem of Mediating While a Court Ruling is Imminent

By: Donald L. Swanson “[W]e are unaware of any authority suggesting that a district court may not rule on a pending motion for summary judgment while the parties may be attempting to settle the matter outside of court.” --Third Circuit Court of Appeals in Myrick v. Discover Bank, Case No. 16-1966, fn. 6 (10/7/2016). The... Continue Reading →

How a Bankruptcy Court Refuses to Approve a Mediated Settlement Agreement

By: Donald L. Swanson One of the crucial rules of mediation is this: all pertinent parties need to be included in the mediation session. That’s because excluded parties can blow-up a mediated deal. Bankruptcy System In bankruptcy, interested parties are everywhere—and they can’t all be included in every mediation. That’s a problem. So, the Bankruptcy Code... Continue Reading →

How Mandated Mediation Works — Even When It Doesn’t

By: Donald L. Swanson The U.S. District Court for the Middle District of Florida has a mediation policy that’s mandatory. A dispute can be excused from mediation, however, “upon a determination” that it “is not suitable for mediation.” A recent case shows how the Middle District’s policy of mandated mediation offers more than one road to... Continue Reading →

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