On Bankruptcy and Mediation
By: Donald L. Swanson Here's the local rule (adopted in November 2017) allowing mediation in Chicago's Bankruptcy Court (emphasis added): RULE 9060-1 MEDIATION AND ARBITRATION Except to the extent required by the Bankruptcy Code or Federal Rules of Bankruptcy procedure, parties to an adversary proceeding or contested matter need not request court approval before pursuing... Continue Reading →
By: Donald L. Swanson The mediation privilege "provides for a broad screen of protection that renders confidential all communications . . . made as part of the mediation process." Grubaugh v. Blomo ex rel. County of Maricopa, 238 Ariz. 264, 359 P.3d 1008 (App. 2015). This Grubaugh v. Blomo case exemplifies a mediation privilege, created... Continue Reading →
By: Donald L. Swanson “[I]f research were to suggest that litigants want to be included in the resolution process but do not desire free verbal exchanges between the parties,” how should ADR providers respond? --Donna Shestowsky in, “How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study, 49 U.C. Davis L. Rev. 793, 797 (2016).... Continue Reading →
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 Have you ever wondered what happens when disputing parties reach a mediated settlement agreement that requires further documentation—and then the settlement falls apart? What actually happens is often not-good. Here is an actual example, from a bankruptcy case, of what happens. The opinion is Blue Dog at #99 Inc. v. BP... Continue Reading →
By Donald L. Swanson “The conflict won’t be resolved by the parties if left to themselves. If it were possible for them to resolve it on their own, they would have done so. Ergo, they need outside help.” Tony Blair, A Journey: My Political Life, 189, Alfred A. Knopf, 2010 Chapter 6 of Tony Blair’s memoir... Continue Reading →
By: Donald L. Swanson England and Wales have a Civil Justice Council that, in 2016, formed an ADR Working Group to “review the ways in which” mediation is “encouraged and positioned within the civil justice system.” In October 2017, the Working Group issued its “Interim Report.” The Interim Report evaluates pros and cons of mandating... Continue Reading →
By: Donald L. Swanson Mandatory mediation works. It results in case settlements. And it helps creates a culture for voluntary mediation. But the idea of a mandated mediation is repugnant to some because it violates a "voluntary" ideal. This is unfortunate. Evaluating Mediation The ultimate goal of all civil litigation is this: to resolve disputes under... Continue Reading →
By: Donald L. Swanson Back in the 1970s, Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals established an experimental mediation program called Civil Appeals Management Plan (“CAMP”) to deal with burgeoning caseloads. 1970s One CAMP feature, implemented for experiment and testing purposes, is the random selection of cases for mandatory mediation. ... Continue Reading →
By: Donald L. Swanson 2018 marks the twenty-year anniversary of the Alternative Dispute Resolution Act of 1998 [codified at 28 U.S.C. § 651 et seq., the "ADR Act"]. Preamble The preamble to the ADR Act contains these findings on mediation: --“mediation . . . may have potential to reduce the large backlog of cases now... Continue Reading →
MEDIATBANKRY 