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 →

Mediation Confidentiality: Mediator’s Information and Testimony

  By Donald L. Swanson The basic rule is this: the confidentiality of information held by a mediator is nearly-sacred. The case is In re Anonymous, 283 F.3d 627 (4th Cir. 2002). The question is whether a mediator may divulge, or be compelled to divulge, information from a mediation session. An underlying lawsuit is settled... Continue Reading →

How a Creative Mediation Program Turns a Problem into Success

By Donald L. Swanson “We, too, sympathize with the plight of the American farmer. Nevertheless, the solution proposed by the Ahlers majority is contrary to the Bankruptcy Code and a long line of case law.” -- U.S. Supreme Court in Norwest Bank Worthingtonb v. Ahlers, 485 U.S. 197, 209 (1988). The Problem The 1980s are... Continue Reading →

Appeals of Bankruptcy (and Other Business) Disputes Take Too Long — Mediation and Other Remedies

By: Donald L. Swanson Advertised Prices: “Haircuts $10 (we add a 3% surcharge if you pay by credit card)” “Sundaes $10 (with a $0.30 surcharge for credit card users)” State Law Violation The State of New York says these advertised prices violate New York General Business Law § 518, which provides: “No seller in any... Continue Reading →

Mediation “Dream Team” Appointed in Puerto Rico — But With a “Voluntary” Limitation and Impediment

By Donald L. Swanson On May 21, 2017, the Financial Oversight and Management Board for Puerto Rico files its “Petition” initiating a proceeding under the Puerto Rico Oversight, Management, and Economic Stability Act. This proceeding is described as a pseudo-bankruptcy and is pending in the U.S. Bankruptcy Court for the District of Puerto Rico (Case... Continue Reading →

How a Judge Makes Mediation Work: Supporting Mediation with Timely Orders

By Donald L. Swanson “We in bankruptcy impair contracts all day, every day . . . That is what we do.” --Judge Steven Rhodes, as quoted by Nathan Bomey in “Detroit Resurrected: To Bankruptcy and Back.” Michigan’s State Constitution provides that public pension rights cannot be impaired.  So, pensioners take the position, in Detroit’s bankruptcy,... Continue Reading →

Mandating Mediation to Develop a Mediation Culture

By:  Donald L. Swanson “[T]he full benefits of mediation are not reaped when parties are left to participate in it voluntarily.” 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). The article linked above is written by Dorcas... Continue Reading →

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