On Bankruptcy and Mediation
By: Donald L. Swanson The Alternative Dispute Resolution Act of 1998 ("ADR Act") is celebrating its twenty-year anniversary this year. It's impact has been highly effective -- but with some less-than-positive results. This article is about the latter. The ADR Act provides in 28 U.S.C. § 652(d): "Until such time as rules are adopted under... Continue Reading →
By: Donald L. Swanson The legal opinion is In re Residential Capital, LLC, 536 B.R. 132 (Bankr. S.D.N.Y. 2015). The Facts, Including Mediation ResCap bought residential mortgage loans and sold those mortgage loans to others. When a mortgage loan crisis hits, a decade or so ago, many of these mortgage loans go bad. Those who bought... Continue Reading →
By Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure. A new Rule is needed to cover two specific subjects: (i) mediation authorization, and (ii) mediation confidentiality. All other areas of mediation practice and procedure can be addressed in local rules, provided that the... Continue Reading →
By: Donald L. Swanson The California Law Revision Commission is studying mediation confidentiality in the legal malpractice context. Its Memorandum dated May 27, 2016, discusses ways to address confidentiality concerns. Minnesota's "Hip Pocket" Example An unusual “type of approach” it identifies is Minnesota’s “hip pocket” service rule. Under this rule, the statute of limitations is... Continue Reading →
By: Donald L Swanson The Bankruptcy Court opinion is In re Brizinova and Soshkin, 565 B.R. 488 (Bkrtcy. E.D.N.Y. 2017). The Trustee sues the debtors to recover assets for the bankruptcy estate. The Debtors file a motion to dismiss, in which their attorney, (i) makes statements the Trustee finds objectionable, and (ii) references information from a... Continue Reading →
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 →
By Donald L. Swanson “In sum, the walls of the mediation room are remarkably transparent." -- James Coben & Peter Thompson The State of California is studying mediation confidentiality in the context of legal malpractice disputes. Suprise # 1 A surprise of the study is from a 2006 law review article by Coben and Thompson... Continue Reading →
By Donald L. Swanson California has been studying this question: should a malpractice exception be added to California's mediation confidentiality laws? If, for example, a mediating party sues his/her/its attorney for malpractice committed during a mediation session, should statements made during the mediation session be admissible evidence in the malpractice lawsuit? Or should such statements... Continue Reading →
By: Donald L. Swanson Can mediation confidentiality be waived? The answer is, “Yes.” --That’s according to the U.S. Ninth Circuit Court of Appeals, from an unpublished “Memorandum” decision in Milhouse v. Travelers Commercial Insurance Co., Case No. 13-56959, 13-57029 (9th Cir., Feb. 23, 2016). Facts The Milhouse residence, located in California, had been destroyed in... Continue Reading →
By: Donald L. Swanson "The court declines to adopt a new mediation privilege under the facts of this case." --Judge Cynthia A. Norton, U.S. Bankruptcy Judge -- December 19, 2016 The case is In re Lake Lotawana Community Improvement District, a Chapter 9 municipale bankruptcy in the Western District of Missouri (Case No. 16-42357). The issue... Continue Reading →
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