On Bankruptcy and Mediation
By: Donald L Swanson "Each United States district court shall authorize . . . the use of alternative dispute resolution processes in all civil actions, including adversary proceedings in bankruptcy." --28 U.S.C. § 651. To date, many bankruptcy courts are still without local mediation rules, despite such statutory language. How can this be? An Explanation... Continue Reading →
By Donald L. Swanson United States statutes require the adoption of local bankruptcy rules for mediation and other alternative dispute resolution tools. Here’s how. Statutes A. The "Alternative Dispute Resolution Act of 1998" provides in part as follows (bold/italics added for emphasis): 28 U.S.C. Sec. 651: Authorization of alternative dispute resolution (b) AUTHORITY- Each... Continue Reading →
By: Donald L. Swanson When a mediating party and counsel say to the mediator: "Just give us your evaluation!" What they are actually saying is: "Just confirm that you agree with my side." --Prof. Elayne E. Greenberg of St. John's University School of Law This observation appears in the "Bankruptcy Mediation" book recently published by... Continue Reading →
By: Donald L. Swanson This is the third-of-three articles on In re Smith, 524 B.R. 689 (Bkrtcy.S.D.Tex. 2015). Sitting Judges as Mediators--for Comparison I've published an earlier article on sitting bankruptcy judges as mediators in bankruptcy cases titled, "What's the Fascination with Requesting an Unnamed 'Sitting Bankruptcy Judge' as Bankruptcy Mediator?" In response to that... Continue Reading →
By: Donald L. Swanson The time is here. We need a new mediation tool! We need to include mediation -- explicitly and by name -- in the Federal Rules of Bankruptcy Procedure. Mediation is already included in the Federal Rules of Civil Procedure for U.S. District Courts. And mediation has become a important tool for... Continue Reading →
By Donald L. Swanson It’s January 2011. I’m sitting in a conference room at the Federal Courthouse in Omaha (the building is new and beautiful; you should visit it sometime). It’s a “brown-bag luncheon” for the local bankruptcy bench and bar. We’re on the last agenda item (open forum), and the judge asks for input.... Continue Reading →
By: Donald L. Swanson The first of my three articles on In re Smith, 524 B.R. 689 (Bkrtcy.S.D.Tex. 2015), quotes the Judge’s arguments for opposing mediation. Some of those arguments seem off-base, as I noted in Part 1. Mediator as Professional However, the Judge addresses another issue in that case on which his ruling is more... Continue Reading →
By Donald L. Swanson Not everyone is a fan of mediation. And one Texas Bankruptcy Judge is emphatically opposed. Judicial Actions Here is an unofficial transcription (from the official recording) of an in-court exchange occurring on September 3, 2014, as reported on this webpage: “The Court: . . . Is the Trustee eventually going to... Continue Reading →
By: Donald L. Swanson Mediators and mediating parties beware! The Facts The mediation of a contentious commercial case concludes without an agreement. But the mediator keeps trying. The mediator sends a post-mediation email to counsel for “Jonathan” conveying a proposal, which includes these statements from the other party: --“Jonathan knows the extent of his wrongdoings... Continue Reading →
By: Donald L. Swanson In Omaha, Nebraska, where I live and practice, mediation plays a central role in civil litigation outside the Bankruptcy Court. And it's playing an increasing role in Bankruptcy Court as well—but that's a story for another day. Mediation is a vital part of the civil litigation culture around here. And it's... Continue Reading →
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