Mediation Timing And Details: Adjusting To Unique Circumstances (In re Diocese of Buffalo)

Adjustments to unique circumstances? (Photo by Marilyn Swanson) By Donald L. Swanson The opinion is from In re The Diocese of Buffalo, N.Y., Case No. 20-10322, Western New York Bankruptcy Court (entered December 27, 2021, Doc. 1487). The Diocese of Buffalo asks the Bankruptcy Court to refer its Chapter 11 case and related adversary proceedings to... Continue Reading →

Mediation Order in Purdue Pharma Bankruptcy: Managing A Tension

Managing tension (photo by Marilyn Swanson) By: Donald L Swanson On January 3, 2022, Reuters reports, under the heading “Judge orders mediation for Purdue, Sacklers over opioid settlement,” as follows: A U.S. bankruptcy judge orders mediation in the Purdue Pharma bankruptcy [fn. 1], calling for the company, the Sackler family members that own it and nine... Continue Reading →

Deposing A Mediator About What Happened In The Mediation (Roberts v. City of Fairbanks)

Pursuing a strategy? (Photo by Marilyn Swanson) By: Donald L Swanson “There is no federal mediation privilege”;“the mediator's testimony about the mediation is not privileged”; and“there is no legal bar to Defendants seeking the [mediator’s testimony] with regard to the mediation and settlement negotiations.” --Roberts v. City of Fairbanks, Case No. 17-cv-00034, U.S. District Court of... Continue Reading →

Mediation Privilege For A Proposed (But Not Actual) Mediator? (In re Boy Scouts)

Not real (photo by Marilyn Swanson) By: Donald L Swanson An insurer in the Boy Scouts of America bankruptcy [fn. 1] files a motion to compel production of documents held by a proposed mediator who did not become an actual mediator in the case. The proposed mediator opposes production based upon a mediation privilege. Guess how... Continue Reading →

Over-Estimating The Persuasive Value Of Electronic Communications

Face-to-face communications (photo by Marilyn Swanson) By: Donald L Swanson Electronic communications (e.g., emails and texts) fail to convey the non-verbal cues that are readily apparent in face-to-face communications.  That’s an unsurprising conclusion from a study titled, “Ask in person: You're less persuasive than you think over email.”  [Fn. 1] Dominant Email and text communications are... Continue Reading →

A Mediator’s Motto: “Never Give Up” — And Its Unexpected Benefits

Patience and perseverance are required (photo by Marilyn Swanson) By: Donald L Swanson A mediator’s motto must always be, “Never give up.”  At the beginning of any mediation, a mediator will hear, all the time and from all the parties, “No, never!” So, a mediator must ignore such statements and keep talking—exercising patience and perseverance .... Continue Reading →

Mandated Mediation: An Effective Dispute-Resolution Tool

Reprinted with permission from the ABI Journal, Vol. XL, No. 9, September 2021. View the original publication here. By: Donald L Swanson Mandated mediation is authorized by federal statute. As such, 28 U.S.C. § 652(a) provides, “Any district court that elects to require the use of alternative dispute resolution in certain cases may do so only... Continue Reading →

“Puffing” In Negotiations — The Hazard Of Trust: A Study

When hazards happen (photo by Marilyn Swanson) By: Donald L Swanson “Puffing” is famously—or notoriously—known as acceptable negotiating behavior in these United States. “Puffing” means something akin to “fibbing”: taking exaggerated positions, pursuing hidden agendas, hiding the ball on willingness to bend, etc.  Although “puffing” in negotiations may be acceptable behavior, it is, often, not a... Continue Reading →

Study: Effectiveness Of Deadlines For Responding To Offers

An expired deadline? (Photo by Marilyn Swanson) By: Donald L Swanson Every party in a mediation or other negotiation effort puzzles over time limits for responding to offers.  Questions that offering parties often grapple with include: How long should the time limit be for responding?Should the time-limited offer be presented as a step in the negotiating... Continue Reading →

ABI’s Mediation Committee: A Home For The “Facilitate” Role Of Subchapter V Trustees

https://youtu.be/0kEXfRwXDSg By: Donald L Swanson The Mediation Committee of the American Bankruptcy Institute promotes mediation as a tool for resolving bankruptcy disputes. The new statutory duty of a Subchapter V trustee to “facilitate the development of a consensual plan of reorganization” (under § 1183(b)(7)) is a mediator-like role, which finds a home in ABI’s Mediation Committee.... Continue Reading →

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