Mediation Without Confidentiality Rules: This Needs to Change

By: Donald L. Swanson “You don’t need my permission. Just click your heels together three times and say, ‘There is no place like mediation.’” --U.S. Bankruptcy Judge Benjamin Goldgar, In re Caesars Entertainment hearing on 2/18/2016. Despite such a statement, the Bankruptcy Court in Chicago had already, prior to February 2016, revoked its local rules... Continue Reading →

Bankruptcy’s “Mediation Desert” Needs to Bloom: The Eighth Circuit Example

By: Don Swanson I’m always hesitant to say something doesn’t exist . . . because I might have missed it. --Nevertheless,  I’m going to give it a shot, knowing I can, later, edit-out any error brought to my attention. My focus, here, is on whether bankruptcy courts within the Eighth Circuit Court of Appeals system (the... Continue Reading →

Bankruptcy’s ADR Rules Have Changed Little Over the Past Century

By: Donald L. Swanson Alternative dispute resolution provisions (“ADR”) involving arbitration and compromises have been part of U.S. bankruptcy laws since at least 1898. ADR Bankruptcy History – From 1898 An 1899 publication of the U.S. “National Bankruptcy Act of 1898” provides for “Arbitration of Controversies” and for “Compromises” in consecutive sections as follows: --“§... Continue Reading →

“Mediation Desert” = A Court Without Mediation Rules

By: Donald L. Swanson “Food deserts” are “places where many residents don’t have access to a full-service grocery store within a mile of home in urban areas or 10 miles in rural ones.” --Wall Street Journal, 7/12/2015 “Mediation deserts” are courts that don’t (or won’t) provide access, by rule or statute, to mediation as a... Continue Reading →

Bankruptcy Mediation Rules are Lagging Behind All Other Federal Courts and Agencies (Part 3)

By: Donald L. Swanson Bankruptcy courts have drawn the short mediation straw and are lagging behind: --they don’t have a Federal rule of procedure for mediation. Every other court in the bankruptcy-related court system has such a rule: --The U.S. district courts have Fed.R.Civ.P. 16(c)(2) & 53 [as discussed in this article]. --The U.S. courts... Continue Reading →

U.S. Circuit Courts of Appeals: Above-and-Beyond Examples of How a Federal Mediation Rule Works (Part 2)

By: Donald L. Swanson How can this be?! Federal rules of procedure contain mediation provisions for every bankruptcy-related court, except for the bankruptcy courts themselves. Why this discrimination against bankruptcy courts??!! [By bankruptcy-related courts, I’m referring to: --the bankruptcy courts themselves; --the U.S. district courts, in both their trial and bankruptcy-appeal capacities; --the bankruptcy appellate... Continue Reading →

We Need a Federal Bankruptcy Rule on Mediation (Part 1)

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 →

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