On Bankruptcy and Mediation
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 →
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 →
By Donald L. Swanson “The decision here is most likely all or nothing. One side is going to win and the other side is going to lose—and that’s going to be very happy on one side and very tough on the other side.” --Judge Steven Rhodes, encouraging parties to reach a settlement, as quoted in... Continue Reading →
By: Donald L. Swanson “Whereas, mediation may provide an opportunity to consensually resolve the Mediation Issues . . . It Is Therefore, Ordered” that “Representatives of the following parties and their counsel are directed to attend the Mediation in person: (i) the Debtors, (ii) the Committee, . . . [etc.] . . . “ Stuart... Continue Reading →
By: Donald L. Swanson Here is a common experience in the bankruptcy courts (and other courts) where mediation is a new or little-used tool: Attorneys have been practicing for years in this court without using mediation. And mediation is slow to catch on. Here’s why: --Attorneys who practice in this court aren’t accustomed to using... Continue Reading →
By Donald L. Swanson "🎶Harmony and understanding, Sympathy and trust abounding, . . . Aquarious🎶" --The Fifth Dimension The year is 1968. The musical "Hair" debuts on Broadway, with the self-assurance of those who have thrown off the norms of prior generations. Aquarius is now here, we are assured. I'm... Continue Reading →
By Donald L. Swanson Nebraska statutes contain a Farm Mediation Act (Neb. Rev. Stat. § 2-4801 et seq). This Act requires a creditor to send notice of a mediation opportunity before attempting to collect a defaulted farm loan. The statute says: “At least thirty days prior to the initiation of a proceeding on an agricultural... Continue Reading →
By Donald L. Swanson Who would guess that pre-lawsuit mediation would work well in resolving credit disputes between creditors and farmers in stressed financial circumstances? But this is precisely what has happened in farm states under farm mediation statutes. Mandatory v. Voluntary Pre-Lawsuit Mediation Statutes Many farm states have established mediation prerequisites for a creditor... Continue Reading →
By: Donald L. Swanson It's always great to see an experiment produce successes that lead to an expansion of the experimental endeavor. This success-and-expansion is exactly what's happened with mandatory mediation experiments in the Delaware Bankruptcy Court. Delaware's Mandatory Mediation The Delaware Bankruptcy Court began mandating mediation, by local rule, in preference cases back in... Continue Reading →
By: Donald L. Swanson In a remarkable demonstration of cooperation and coordination, three separate courts (both Federal and State) enter proactive mediation orders and appoint the same mediator in three related cases. Fact Background The cases involve a genetically modified strain of corn developed and marketed by Syngenta. The new strain gets regulatory approval from... Continue Reading →
MEDIATBANKRY 