On Bankruptcy and Mediation
By Donald L. Swanson "Girls just want to have fun," according to Cyndi Lauper. --And mediators just want to get paid! We receive an important lesson for mediators getting paid out of bankruptcy from a recent mediation hiccup. The lesson is this: --If you want to get paid from bankruptcy estate funds, you need court... Continue Reading →
By Donald L. Swanson What’s with judges re-writing terms of bankruptcy settlement agreements?! A Current Example That’s exactly what the dissenting judge wants to do in the In re Jevic Holding Corp. case (certiorari granted by U.S. Supreme Court on June 28, 2016; oral argument held on December 7, 2016). This dissenting judge would: (i)... Continue Reading →
By: Donald L. Swanson “Confidentiality is an important feature” of mediation, because it "promotes the free flow of information that may result in the settlement of a dispute." “We vigorously enforce the confidentiality provisions” of our own mediation system “because we believe that confidentiality is essential" to its “vitality and effectiveness.” U.S. Second Circuit Court... Continue Reading →
By: Donald L. Swanson I've been asked many times for the number of bankruptcy court districts who, (i) HAVE adopted local rules on mediation, and (ii) HAVE-NOT adopted such rules. --The have-not courts, it seems, are hanging on to the past -- for reasons that are unknown . . . and not readily apparent. Initial... Continue Reading →
By: Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure. Mediation Authorization and Confidentiality The new mediation provision must cover two specific subject areas: (i) mediation authorization, and (ii) mediation confidentiality. Authorization. If a city is a Chapter 9 debtor in a jurisdiction... Continue Reading →
By: Donald L. Swanson In a remarkable demonstration of cooperation and coordination, three separate courts (both Federal and State) enter proactive mediation orders and appoint the same mediator in three related cases. Fact Background The cases involve a genetically modified strain of corn developed and marketed by Syngenta. The new strain gets regulatory approval from... Continue Reading →
By: Donald L. Swanson "Each United States district court shall,” by local rule: --“authorize . . . the use of alternative dispute resolution processes in all civil actions, including adversary proceedings in bankruptcy”; --“devise and implement its own alternative dispute resolution program "; --"encourage and promote the use of alternative dispute resolution in its district";... Continue Reading →
By: Donald L. Swanson The U.S. Circuit Court of Appeals for the Federal Circuit has been a maverick. For decades it was the lone mediation holdout among all U.S. Circuit Courts of Appeals. In the mid-1970s, a mediation program is pioneered by one of the Circuit Courts. By 1987, five of the thirteen Circuit Courts... Continue Reading →
By: Donald L. Swanson We all make assumptions -- every day -- about many things. Our false assumptions are our illusions. There are many illusions about mediation, most of which place restrictions on the role and effectiveness of the mediation process. We all have them. Fortunately, we now have solid evidence to dispel some of... Continue Reading →
By: Donald L. Swanson It's a beautiful scene: Federal courts applying and enforcing their local rules on mediation confidentiality. --Nearly all U.S. District Courts and U.S. Circuit Courts of Appeals, and many Bankruptcy Courts, have such local rules. But then the Ninth Circuit Court of Appeals comes along with a bombshell. It suggests that local... Continue Reading →
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