Tag: Bankruptcy Mediation

U.S. Congress and Supreme Court Support ADR — But Some Bankruptcy Courts Remain Nonconformist on Mediation

NonconformityBy Donald L. Swanson There is "a kind of 'hostility to arbitration' that led Congress to enact" the Federal Arbitration Act. Kindred Nursing Centers v. Clark, U.S. Supreme Court Case No. 16-32 (decided May 15, 2017). Alternative dispute resolution processes ("ADR") include arbitration and mediation. Arbitration Congress passed the Federal Arbitration Act ("Arbitration Act") to... Continue Reading →

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How Mediation Can Be Effective – Even When it Doesn’t Happen

By: Donald L. Swanson Arch Coal, Inc., files bankruptcy on January 11, 2016. By the month of May 2016, the debtor and its creditors are in contentious negotiations over terms of a Chapter 11 plan.  At one point, the parties think they have an agreement in principal, but things fall apart when putting settlement details... Continue Reading →

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How a Judge Makes Mediation Work: Supporting Mediation with Timely Orders

By Donald L. Swanson “We in bankruptcy impair contracts all day, every day . . . That is what we do.” --Judge Steven Rhodes, as quoted by Nathan Bomey in “Detroit Resurrected: To Bankruptcy and Back.” Michigan’s State Constitution provides that public pension rights cannot be impaired.  So, pensioners take the position, in Detroit’s bankruptcy,... Continue Reading →

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Mandating Mediation to Develop a Mediation Culture

By:  Donald L. Swanson “[T]he full benefits of mediation are not reaped when parties are left to participate in it voluntarily.” D. Quek, Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program, Cardozo Journal of Conflict Resolution, Vol 11:479, at 483 (Spring 2010). The article linked above is written by Dorcas... Continue Reading →

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How a Judge Makes Mediation Work: Minimizing Risks in Close-Call and Winner-Take-All Disputes

By Donald L. Swanson “The decision here is most likely all or nothing.  One side is going to win and the other side is going to lose—and that’s going to be very happy on one side and very tough on the other side.” --Judge Steven Rhodes, encouraging parties to reach a settlement, as quoted in... Continue Reading →

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A Proactive Mediator Role: “Special Settlement Master”

By Donald L. Swanson Mediators are appointed as “special masters” in the U.S. District Courts.  Such appointments are authorized by Fed. R. Civ. P. 53. Examples of Mediators as Special Settlement Masters Mediators appointed as special settlement masters are often given a broad range of authority to act proactively on the court’s behalf. One example is In... Continue Reading →

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Next Steps for a Court with Basic Mediation Rules: Mandated and Early Mediation

By: Donald L. Swanson Here is a common experience in the bankruptcy courts (and other courts) where mediation is a new or little-used tool: Attorneys have been practicing for years in this court without using mediation.  And mediation is slow to catch on.  Here’s why: --Attorneys who practice in this court aren’t accustomed to using... Continue Reading →

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Structured Dismissal Negotiations are Ripe for Mediation: Until the Supreme Court Upends Precedent (In re Jevic)

By: Donald L. Swanson “We are not final because we are infallible, but we are infallible only because we are final.” --From concurring opinion of U.S. Supreme Court Justice Robert H. Jackson, in Brown v. Allen, 344 U.S. 443 (1953), on role and function of the U.S. Supreme Court. Structured dismissals are [correction: were] a... Continue Reading →

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Mediator Neutrality: An “I believe . . . ” Test

By Donald L. Swanson A mediator is, by definition, a "neutral." Neutrality seems to be a straight-forward concept: it means not-taking-sides. But not-taking-sides is, apparently, not all that simple. Check out this excellent article and this fine series of essays on the subject. Efforts to define or explain "neutrality" often get bogged down. Sometimes, new... Continue Reading →

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Is Offering Opinions and Solutions a Bad Idea for Mediators?

By: Donald L. Swanson “Leadership is a perpetual exercise in managing conflict.” --Morris Shechtman, 2003 A 2016 report on a mediation study evaluates and compares the effects on conflict of: (i) mediators who elicit solutions from parties in conflict, and (ii) mediators who offer opinions and solutions to the parties in conflict. Mediator Eliciting Solutions from Parties... Continue Reading →

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