“Hallway Mediation” for Multi-Party Disputes that are Stuck and Going Nowhere

"Hallway Mediation" is this: Putting multi-party disputants into a room to talk about their disputes, with the mediator orchestrating (or maybe it's refereeing) the event. I call it "Hallway Mediation" because that's where I first saw it happen and learned to do it: in the hallways outside the Bankruptcy Courtrooms in Omaha, Lincoln and North... Continue Reading →

Micromanaging the Mediation Process

  By: Donald L. Swanson In the case of In re Sabine Oil & Gas Corp., Case No. 15-11835 (Bankry. S.D.N.Y.), the bankruptcy judge authorizes and terminates two separate mediation efforts by the following orders: --January 5, 2016 – “Order Selecting Mediator and Governing Mediation Procedures” (Doc. 669). --May 2, 2016 – “Order Terminating STN... Continue Reading →

So . . . What’s a Mediator to Do?

By Donald L. Swanson “The mediator is a nice guy. But he needed to be tougher. He needed to pound harder on the other side . . . and on us . . . to get the case settled.” --A disappointed litigator explaining why a case did not settle in mediation. There are differing mediation styles.... Continue Reading →

A Court Assesses Damages for Unreasonable Refusals to Engage in Mediation

By: Donald L. Swanson "For all of those reasons I think that the failure to engage in mediation or any other serious ADR was unreasonable." --Judge Waksman, QC, in the High Court of Justice, Chancery Division, Manchester District Registry, England,  Feb. 3, 2014. Perhaps we can learn about mediation from other legal systems. Here’s an... 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 →

Omission of Mediators and Other “Masters” from Federal Bankruptcy Rules is the Result of Haste and Error?!

By: Donald L. Swanson Mediators and Other Special Masters in District Courts -- Rule 53 “Special Masters” can be appointed by U.S. District Courts to handle special circumstances, under Fed.R.Civ.P. 53. One type of special master under Rule 53 is a “Settlement Master” (aka “Mediator”). Special masters are used by District Courts, typically, in large... Continue Reading →

Combining the “Hip Pocket” Service Rule and Early Mediation

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 →

Sanctions for Violating Mediation Confidentiality? No.

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 →

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 →

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