On Bankruptcy and Mediation
By: Donald L. Swanson What do mediating parties say about their mediators? That’s what Prof. Stephen B. Goldberg and Margaret L. Shaw wanted to know. So, they do a study and report on it back in 2008, as follow-up to a prior study. And the mediating parties are more-than-happy to hand out reviews. Prior Study... Continue Reading →
By: Donald L. Swanson The U.S. Circuit Courts of Appeals have, for many years, administered their own mediation programs for civil cases. The administrators and mediators in such programs are, typically, Federal employees. Such mediation programs are also characterized, typically, by the following: --mandatory referral of cases to mediation with no-extra-charge for mediator services --mediation... Continue Reading →
By: Donald L. Swanson Prof. Stephen G. Goldberg surveyed 30 experienced and successful mediators: 28 had mediated at “least 100 disputes,” and 2 had mediated “more than 50 but less than 100.” He wanted to know “how they accounted for their successes.” Prof. Goldberg reports his survey findings in, “Mediators Reveal Their Essential Techniques for... Continue Reading →
By Donald L. Swanson Examples of “an alternative dispute resolution process” include, “early neutral evaluation, mediation, minitrial, and arbitration.” --28 U.S.C. § 651(a) (from the Alternative Dispute Resolution Act of 1998). Over time, the word “mediation” has come to be a shorthand term encompassing all non-binding alternative dispute resolution processes. And the result is often a... Continue Reading →
"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 →
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 →
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 →
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 →
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 →
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 →
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