On Bankruptcy and Mediation
By: Donald L. Swanson Conventional thinking (as I understand it) is that mediators should not have a role in preparing a settlement-terms document that concludes a successful mediation. I'm suggesting that a mediator can/should have a limited-and-neutral role in preparing such a document. Here's why. Some Ancient History Its 25 years ago -- or more.... Continue Reading →
By: Donald L. Swanson I’m scanning a news article earlier this week. The term “militant open-mindedness” catches my eye. My immediate reaction is excitement: --“Oh great! This will provide a lesson and analogy for mediation!” --After all, “open-mindedness” is “a receptiveness to new ideas” and a belief that “others should be free to express their... Continue Reading →
By: Donald L. Swanson One reason given by the Chicago Bankruptcy Court for the recent revocation of its Local Mediation Rules is this: --Several Judges in the Chicago Bankruptcy Court have agreed to mediate cases for their colleagues on that Court. The pickle is this: --such intra-court mediator appointments create a conflict of interest. This... Continue Reading →
By Donald L. Swanson You are out there: professionals who've had mediation training and are set-to-go as mediators of bankruptcy disputes but, alas, are still looking for cases to mediate. I'd like to introduce you to some attorneys who can't afford a mediator for their smaller-amount cases: they are reading this article. Attorneys with smaller-amount... Continue Reading →
By: Donald L. Swanson A tragedy of recent Chapter 11 times is this: --it looks like Congress tried to remove the absolute priority rule from individual Chapter 11 cases (see the "individual" exception in § 1129(b)(2)(B)(ii) photo above); but Congress didn't quite get the removal words right, according to subsequent court rulings. We now have... Continue Reading →
By: Donald L. Swanson Mandatory mediation is a good thing [see, e.g., my blog post titled, "Local Bankruptcy Rules Without Mandatory Mediation are Like a Toolbox Without a Vise-Grip"]. But the words "mandatory mediation" refer only to a required process. They do not suggest any such thing as compelled settlement or compelled concession or even... Continue Reading →
By Donald L. Swanson I don't need to see a study or commission report for the title of this article. I've seen the problem play out many, many times in real life. Here is an attempt to explain. Some Propositions Proposition # 1: When one party has 0% odds of success at trial, a mediation... Continue Reading →
Action Item. Issues relating to first offer arrangements, non-monetary terms, settlement documentation, number of sessions, and use of an assistant mediator need to be discussed in advance by the mediator with parties and their attorneys to prepare for multiparty mediation sessions. Advance communications on subjects identified in this three-part series will significantly enhance the efficiency... Continue Reading →
By Donald L. Swanson When preparing for a multiparty mediation, the following items 6 through 10 should be addressed by the mediator with the parties and their attorneys in advance communications. Item Six. First Offer Arrangements. Common questions about the first offer in a mediation are: (1) Which party will make the initial offer at... Continue Reading →
By Donald L. Swanson Here are two recent news articles on similar subjects and similar circumstances . . . but with dramatically different approaches and results. The first is from Yahoo Sports, dated June 20, 2016, titled, Attorney: Art Briles was a no-show at mediation meeting with [rape] victim. The second is from... Continue Reading →
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