Mediation Order in Purdue Pharma Bankruptcy: Managing A Tension

Managing tension (photo by Marilyn Swanson) By: Donald L Swanson On January 3, 2022, Reuters reports, under the heading “Judge orders mediation for Purdue, Sacklers over opioid settlement,” as follows: A U.S. bankruptcy judge orders mediation in the Purdue Pharma bankruptcy [fn. 1], calling for the company, the Sackler family members that own it and nine... Continue Reading →

Deposing A Mediator About What Happened In The Mediation (Roberts v. City of Fairbanks)

Pursuing a strategy? (Photo by Marilyn Swanson) By: Donald L Swanson “There is no federal mediation privilege”;“the mediator's testimony about the mediation is not privileged”; and“there is no legal bar to Defendants seeking the [mediator’s testimony] with regard to the mediation and settlement negotiations.” --Roberts v. City of Fairbanks, Case No. 17-cv-00034, U.S. District Court of... Continue Reading →

Mediation Privilege For A Proposed (But Not Actual) Mediator? (In re Boy Scouts)

Not real (photo by Marilyn Swanson) By: Donald L Swanson An insurer in the Boy Scouts of America bankruptcy [fn. 1] files a motion to compel production of documents held by a proposed mediator who did not become an actual mediator in the case. The proposed mediator opposes production based upon a mediation privilege. Guess how... Continue Reading →

Violating Mediation Confidentiality: To Sanction Or Not (Adkisson v. Jacobs Engineering)

A confidential location (photo by Marilyn Swanson) By Donald L. Swanson The opinion is Adkisson et al. v. Jacobs Engineering Group, Inc., Case Nos. 13-CV-505 et al., in the U.S. District Court for Eastern Tennessee (decided July 7, 2020, Doc. 561). The opinion addresses Defendant’s Motion for an order: Enforcing the confidentiality of mediation; andImposing sanctions... Continue Reading →

When Mediation Confidentiality Doesn’t Apply–As A Matter of Law (Northern v. Coffey)

Unlimited access (photo by Marilyn Swanson) By: Donald L Swanson Mediation confidentiality is sacrosanct.  Or, so we are all taught in mediation training courses. But in a New Jersey case, from earlier this year, mediation confidentiality is not sacrosanct at all: communications before, during and after mediation sessions are testified to profusely by parties, attorneys and... Continue Reading →

Mediation Confidentiality at Work

By: Donald L. Swanson Every now and then we get a refresher on mediation confidentiality and how it works.  Here is one such refresher. The case is Apollo Education Group, Inc. v. National Union Fire Insurance, Case No. CV-15-01948 in Arizona's U.S. District Court.  The District Court addresses the admissibility into evidence of three documents from a... Continue Reading →

Mediation Confidentiality: Defenses Raised and Rejected

By Donald L. Swanson The Judges are irritated, to begin with. If anything is clear in In re Anonymous, 283 F.3d 627 (4th Cir. 2002), it’s this: the Judges on the U.S. Court of Appeals are more-than-slightly unhappy with the two attorneys in the case. A Confidentiality Issue The Court hauls two competing attorneys before the... Continue Reading →

Mediation Confidentiality at Second and Ninth Circuits: Stability v. Who Knows?

By: Donald L Swanson You’d expect, these days, that mediation confidentiality is enforced everywhere. But that expectation is wrong. Bankruptcy Hypothetical Let’s start with a bankruptcy hypothetical: Debtor is a small business in Chapter 11 and hopes to reorganize—not liquidate. Debtor reaches a mediated settlement with a large creditor, removing an obstacle to reorganization. Mediating parties... Continue Reading →

Mediation Confidentiality: Limits on Waiving It

Competing and Turbulent InterestsBy Donald L. Swanson The case is In re Anonymous, 283 F.3d 627 (4th Cir. 2002).  It’s an attorney discipline action over breaches of mediation confidentiality in an arbitration.  The dispute in arbitration is between an attorney and his former client over litigation expenses.  This dispute arose after the attorney and client concluded... Continue Reading →

Local Confidentiality Rules DO Create a Mediation Privilege: ADR Act of 1998

By: Donald L. Swanson “It’s doubtful that a district court can augment the list of privileges by local rule” because “privileges are created by federal common law.” —The Facebook, Inc. v. Pacific Northwest Software, Inc., 640 F.3d 1034 (9th Cir. 2011). The Facebook case deals with evidence on “what was said and not said” during mediation. In Facebook,... Continue Reading →

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