On Bankruptcy and Mediation
By Donald L. Swanson United States statutes require the adoption of local bankruptcy rules for mediation and other alternative dispute resolution tools. Here’s how. Statutes A. The "Alternative Dispute Resolution Act of 1998" provides in part as follows (bold/italics added for emphasis): 28 U.S.C. Sec. 651: Authorization of alternative dispute resolution (b) AUTHORITY- Each... Continue Reading →
By Donald L. Swanson Detroit’s mediated settlements are “an extraordinary accomplishment in bankruptcy and an ideal model for future municipal debt restructurings.” --Judge Steven W. Rhodes, from Detroit Bankruptcy’s Plan Confirmation Ruling A new report “Who Pays for Police Misconduct in Bankrupt Cities” is the title for the report of a study, published on August... Continue Reading →
By: Donald L. Swanson When a mediating party and counsel say to the mediator: "Just give us your evaluation!" What they are actually saying is: "Just confirm that you agree with my side." --Prof. Elayne E. Greenberg of St. John's University School of Law This observation appears in the "Bankruptcy Mediation" book recently published by... Continue Reading →
By: Donald L. Swanson This is the third-of-three articles on In re Smith, 524 B.R. 689 (Bkrtcy.S.D.Tex. 2015). Sitting Judges as Mediators--for Comparison I've published an earlier article on sitting bankruptcy judges as mediators in bankruptcy cases titled, "What's the Fascination with Requesting an Unnamed 'Sitting Bankruptcy Judge' as Bankruptcy Mediator?" In response to that... Continue Reading →
By: Donald L. Swanson The time is here. We need a new mediation tool! We need to include mediation -- explicitly and by name -- in the Federal Rules of Bankruptcy Procedure. Mediation is already included in the Federal Rules of Civil Procedure for U.S. District Courts. And mediation has become a important tool for... Continue Reading →
By Donald L. Swanson It’s January 2011. I’m sitting in a conference room at the Federal Courthouse in Omaha (the building is new and beautiful; you should visit it sometime). It’s a “brown-bag luncheon” for the local bankruptcy bench and bar. We’re on the last agenda item (open forum), and the judge asks for input.... Continue Reading →
By: Donald L. Swanson The first of my three articles on In re Smith, 524 B.R. 689 (Bkrtcy.S.D.Tex. 2015), quotes the Judge’s arguments for opposing mediation. Some of those arguments seem off-base, as I noted in Part 1. Mediator as Professional However, the Judge addresses another issue in that case on which his ruling is more... Continue Reading →
By Donald L. Swanson Not everyone is a fan of mediation. And one Texas Bankruptcy Judge is emphatically opposed. Judicial Actions Here is an unofficial transcription (from the official recording) of an in-court exchange occurring on September 3, 2014, as reported on this webpage: “The Court: . . . Is the Trustee eventually going to... Continue Reading →
By: Donald L. Swanson Conventional thinking (as I understand it) is that mediators should not have a role in preparing a settlement-terms document that concludes a successful mediation. I'm suggesting that a mediator can/should have a limited-and-neutral role in preparing such a document. Here's why. Some Ancient History Its 25 years ago -- or more.... Continue Reading →
By: Donald L. Swanson One reason given by the Chicago Bankruptcy Court for the recent revocation of its Local Mediation Rules is this: --Several Judges in the Chicago Bankruptcy Court have agreed to mediate cases for their colleagues on that Court. The pickle is this: --such intra-court mediator appointments create a conflict of interest. This... Continue Reading →
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