A Recommendation for Mandating Mediation in England and Wales

By: Donald L. Swanson The voluntary mediation scheme “does remain under-used.” --October 2017 Interim Report on Mediation in England and Wales England’s Civil Justice Council is an Advisory Body established under the “Civil Procedure Act 1997” to oversee and co-ordinate “the modernization of the civil justice system.” On January 28, 2016, the Council formed a Working... Continue Reading →

An Example of Mediation Success in Hostile and Difficult Circumstances (City of San Bernardino Bankruptcy)

By Donald L. Swanson Timeline for a Plan Confirmation Dispute November 11:  Creditor requests an order requiring mediation November 14 (a.m.):  Debtor objects to request for mediation order November 14 (p.m.):  Court orders mediation December 6:  Debtor and creditor reach a settlement agreement February 7:  Debtor’s bankruptcy plan is confirmed This timeline is from a... Continue Reading →

A “Compelling Reason” for Mandating Mediation: to Advocate for its Use

By:  Donald L. Swanson “Studies show that parties who have entered mediation reluctantly still benefited from the process even though their participation was not voluntary.” 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). Dorcas Quek is arguing... Continue Reading →

A Futile Attempt at Ignoring Mediation Obligations

By:  Donald L. Swanson There’s a lawsuit now in progress in a Florida Federal Court over a local pub. The Pub Dispute Plaintiff claims to be "a franchisor” of “establishments” that sell “imported and domestic beers” and other products used in “a distinctive pub environment.” Plaintiff also claims to have “methods and procedures—a system—” that... Continue Reading →

Private Mediators: A Solution to Budget Pressures on Circuit Court Mediation Programs

By: Donald L. Swanson The U.S. Circuit Courts of Appeals have, for many years, administered their own mediation programs for civil cases.  The administrators and mediators in such programs are, typically, Federal employees. Such mediation programs are also characterized, typically, by the following: --mandatory referral of cases to mediation with no-extra-charge for mediator services --mediation... Continue Reading →

How Mandatory Mediation Succeeds: Seven Illustrations

By: Donald L. Swanson “Mandatory mediation” is a self-explanatory term.  It means this: –Disputing parties are required by court order or rule of law to participate in a mediation session. Mandatory mediation is a common tool for resolving disputes.  However, a reticence still exists, in much of the bankruptcy world, toward mandatory mediation.  The sources... Continue Reading →

A Cool Play from the Litigation / Mediation Playbook

By: Donald L Swanson “[T]he parties should be prepared to engage in mediation before the Court fixes any evidentiary hearing.” Bankruptcy Judge Kevin J. Carey, In re AWI Delaware, Inc., Case No. 14-12092 (Bankry. Del., opinion dated 6/28/2017). Did you ever see a play in a sporting event that’s both imaginative and effective? And your reaction... Continue Reading →

Proactive Mediator + Settlement Counsel = How it Should be Done in Difficult Cases

By: Donald L. Swanson A typical lawsuit mediation involves a passive mediator dealing with litigation attorneys: --Passive mediators must wait to be engaged and then assist with disputes the parties identify; and --Litigation attorneys are fighting the case in court—they are active belligerents. So . . . the practical effect, in a typical lawsuit mediation, is... Continue Reading →

How Settling Up is Hard to Do in a Mediation on Appeal

By: Donald L. Swanson When . . . an appeal is from the district court’s affirmance of a bankruptcy court order, a remand to the bankruptcy court for approval of settlement requires coordination between three courts. --Cox v. Nostaw, Inc. (In re Central Illinois Energy Coop.), Case No. 16-1389 (7th Cir., Feb. 8, 2017). Background... Continue Reading →

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