Another Demonstration of Uncertainty Over Mediation Confidentiality in Bankruptcy

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 →

Mediation Confidentiality: The Second Circuit’s Sensible Standard for Disclosure

By: Donald L. Swanson “Confidentiality is an important feature” of mediation, because it "promotes the free flow of information that may result in the settlement of a dispute." “We vigorously enforce the confidentiality provisions” of our own mediation system “because we believe that confidentiality is essential" to its “vitality and effectiveness.” U.S. Second Circuit Court... Continue Reading →

A List of Bankruptcy Districts that HAVE and HAVE-NOT Adopted Local Mediation Rules

By: Donald L. Swanson I've been asked many times for the number of bankruptcy court districts who, (i) HAVE adopted local rules on mediation, and (ii) HAVE-NOT adopted such rules. --The have-not courts, it seems, are hanging on to the past -- for reasons that are unknown . . . and not readily apparent. Initial... Continue Reading →

Five Reasons Why Mediation Must be Added to the Federal Bankruptcy Rules

By: Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure. Mediation Authorization and Confidentiality The new mediation provision must cover two specific subject areas: (i) mediation authorization, and (ii) mediation confidentiality. Authorization.  If a city is a Chapter 9 debtor in a jurisdiction... Continue Reading →

A Final Step to Uphold Mediation Confidentiality in Federal Courts

By: Donald L. Swanson   (d) Confidentiality Provisions.— Until such time as rules are adopted under [28 U.S.C. §§ 2071 et seq.] providing for the confidentiality of alternative dispute resolution processes . . . , each district court shall, by local rule adopted under section 2071(a), provide for the confidentiality of . . . dispute resolution... Continue Reading →

There’s No-Such-Thing as a “Mediation Privilege” in Federal Court?!

By: Donald L. Swanson It's a beautiful scene:  Federal courts applying and enforcing their local rules on mediation confidentiality. --Nearly all U.S. District Courts and U.S. Circuit Courts of Appeals, and many Bankruptcy Courts, have such local rules. But then the Ninth Circuit Court of Appeals comes along with a bombshell.  It suggests that local... Continue Reading →

Mediation Confidentiality: Federal Evidence Rule 408 Leaks Like a Sieve

By: Donald L. Swanson Chapter 11 Debtor successfully mediates confirmation disputes with a half-dozen creditors.  Now, a hold-out creditor moves for discovery of the mediation communications in an effort to torpedo plan confirmation. The mediating parties come to realize that their Bankruptcy Court has no local rule requiring mediation confidentiality.  And, of course, there is... Continue Reading →

How the Mediation Privilege Works, with an “Opened the Door” Exception: a New Bankruptcy Court Ruling

By: Donald L. Swanson Four law firms are squabbling over how to divide a $20 million attorney fees fund in a bankruptcy case.  [Insert your own derisive epithet here.] The Facts A two-year and multi-session mediation results in settlements of asbestos-related claims.  One such settlement involves a $90 million payment from an insurance company, $70... Continue Reading →

Mediation Confidentiality is the Source of Judicial Bewilderment

   By: Donald L. Swanson "I found the [Mediator's resignation] letter to be a little bit bewildering."             --A. Benjamin Goldgar, Chicago Bankruptcy Judge, September 21, 2016. Judge Goldgar is, obviously, an excellent jurist with excellent judgment. But everyone makes mistakes. And Judge Goldgar's flap with the Caesars mediator over... Continue Reading →

Mediator in Caesars Entertainment Resigns — With an Interesting Explanation

By Donald L. Swanson Here is a photo of the resignation letter from the mediator in the Caesars Entertainment bankruptcy proceeding. Wow!!  That's an interesting take. And kudos to the mediator.  It's always refreshing to see a principled stance. This Caesars case is pending in the Bankruptcy Court for the Northern District of Illinois, located... Continue Reading →

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