On Bankruptcy and Mediation
By: Donald L. Swanson We’ve all wondered, over the years, about the advisability and effectiveness of mandatory mediation. Turns out that mandatory and voluntary mediation programs can achieve about the same results when: --judges in a mandatory system accommodate participants who don't want to mediate, and --judges in the voluntary system encourage mediation. Empirical Data... Continue Reading →
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 →
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 →
Judge Irving Kaufman By: Donald L. Swanson Judge Irving Kaufman is famous for many things, such as presiding over the Rosenberg espionage trial and rejecting the U.S. government’s attempt to deport John Lennon to the United Kingdom. But Judge Kaufman’s greatest legacy may be for his role in developing mediation as a primary dispute resolution... Continue Reading →
By: Donald L Swanson October 31, 2018, was the 20th anniversary of the Alternative Dispute Resolution Act of 1998 (the “ADR Act”). [Fn. 1] The ADR Act has had a profound impact on the practice of law throughout the federal court system. However, it also has shortfalls that are yet to be rectified. A Mediation Model:... Continue Reading →
The progress of bankruptcy mediation is nearly-always upward: toward expanding the use of local mediation rules.
By Donald L. Swanson A 2018 mediation study [Fn. 1] tests the following hypothesis: That referral of a lawsuit to mediation at an early stage is more likely to lead to settlement than a later referral. What the study finds is that timing is a complex issue that’s influenced by and “could be a proxy for”... Continue Reading →
By Donald L. Swanson Back in 1994, Minnesota state courts adopt a "mandatory consideration" rule for alternative dispute resolution ("ADR") possibilities. The rule works, back then, like this: Attorneys are required to, (i) consider using ADR in every civil case, (ii) discuss ADR with their client(s) and opposing counsel, and (iii) advise the court of their... Continue Reading →
By: Donald L Swanson In many courts, these days, mediation reigns supreme. This is so-much-so that, court reporters complain about mediation cutting into their business; judges complain about cases settling in mediation and no one trying cases any more; and attorneys in casual conversations commonly talk about preparations for and successes in mediation, not trial. Such... Continue Reading →
By: Donald L Swanson Mediation in civil litigation, here in the States, typically occurs as discovery winds down and as a trial date is in the offing. And, typically, mediation happens at the initiative of the parties—not by court referral. That’s how it’s done. Singapore Study But there are other ways to do it. In Singapore,... Continue Reading →
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