On Bankruptcy and Mediation
By: Donald L. Swanson “Leadership is a perpetual exercise in managing conflict.” --Morris Shechtman, 2003 A 2016 report on a mediation study evaluates and compares the effects on conflict of: (i) mediators who elicit solutions from parties in conflict, and (ii) mediators who offer opinions and solutions to the parties in conflict. Mediator Eliciting Solutions from Parties... Continue Reading →
By: Donald L. Swanson The concepts of “failure” and “success” in a mediation typically refer to whether a settlement agreement is achieved during the mediation session. I’ve always felt uneasy about the use of such “failure” and “success” terms in this way. --I can’t quite put a finger on the source of unease. But it’s like... Continue Reading →
By: Donald L. Swanson “What do empirical studies tell us about court mediation”? This question is asked and answered in a 2004 article. The authors of the article are examining “empirical data” and looking for “best practices” in programs that mediate non-family civil matters. The practices they identify as “best” are those that promote “regular... Continue Reading →
By: Donald L. Swanson Here’s an experience that’s common to all trial attorneys. We’re working in our litigation War Room. Trial is scheduled to begin in ten days. Our focus on trial preparations is intense. But then the phone rings. It’s an attorney on the other side with a settlement offer. The offer is a... Continue Reading →
By: Donald L. Swanson “There is nothing new under the sun.” --Ecclesiastes 1:9 My first-hand knowledge of China is limited: I’ve traveled to Beijing a couple times, spent time (both there and here) with Chinese citizens, practiced law with a Chinese national, etc. But here is something I’ve never understood: --How are personal and business... Continue Reading →
“Nothing will lower your credibility faster than avoiding conflict.” --Morris Shechtman, 2003 By Donald L. Swanson Conflict is difficult. And conflict is uncomfortable. So, the easiest and most comfortable way to handle conflict . . . is to avoid it. That's why caucus-only mediation has become standard practice in many mediations of business disputes. In... Continue Reading →
By: Donald L. Swanson When mediation occurs early-in-a-case, instead of late, “cases are more likely to settle, fewer motions are filed and decided, and case disposition time is shorter, even for cases that do not settle.” --B. McAdoo, N. Welsh & R. Wissler, “What Do Empirical Studies Tell Us About Court Mediation?” (2004) A lawsuit... Continue Reading →
By Donald L. Swanson "🎶Harmony and understanding, Sympathy and trust abounding, . . . Aquarious🎶" --The Fifth Dimension The year is 1968. The musical "Hair" debuts on Broadway, with the self-assurance of those who have thrown off the norms of prior generations. Aquarius is now here, we are assured. I'm... Continue Reading →
By: Donald L. Swanson The plan confirmation process does not provide a party to the mediation “with a renewed opportunity to challenge the [mediated] settlement to which they are bound.” --In re RPP, LLC, 547 B.R.158, 164 (Bkrtcy.W.D.Pa. 2016). The RPP, LLC bankruptcy case is a Chapter 11 reorganization, with plan confirmation occurring on June... Continue Reading →
By: Donald L. Swanson Mediation is firmly entrenched as a dispute resolution tool in bankruptcy. Mediation is commonly and regularly used throughout the bankruptcy system. And mediation’s value in bankruptcy is almost-universally recognized. A Mediation Gap But there are wide gaps in bankruptcy where mediation is still under-utilized. One of the gaps is consumer cases. ... Continue Reading →
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