Action Item. Issues relating to settlement impediments, parties, information and discovery, use of joint sessions, and tax implications need to be discussed in advance by the mediator with parties and their attorneys to prepare for multiparty mediation sessions.
Preparing for Multiparty Mediation: A Checklist — Part Two, Items 1 – 5
By Donald L. Swanson Advance communications among the mediator, the parties and their attorneys can be helpful in creating an organization, structure and efficiency for multiparty mediation sessions. The following are items one through five in a ten-item checklist of the types of subjects that should be addressed in the advance communications: Item One. Settlement... Continue Reading →
A “Mediation Order on Steroids” – The In re Syngenta Case
By: Donald L Swanson Proactive mediation seems to be gaining traction in cases with large numbers of claimants and large amounts of money at stake. Examples are the City of Detroit bankruptcy, the diocese bankruptcies, and the Argentina debt cases. We can now add another example to the list: the multi-district case of In re... Continue Reading →
Preparing for Multiparty Mediation: A Checklist — Part One, Introduction
By Donald L. Swanson Here’s a confession. I’m in a four-party mediation. It begins at 9:30 a.m. in a joint 30-minute meeting. The mediator then spends 30 minutes with each party. It’s now noon — we’re taking lunch orders — and the mediation process has only just begun! At mid-afternoon, positions are far apart, and... Continue Reading →
Mediation as a Condition for Confirmation of a Disputed Chapter 11 Plan
By Donald L. Swanson Here's a proposal: Mediation among disputing parties should be a condition precedent for a final confirmation hearing on a contested Chapter 11 plan. The short history of bankruptcy mediation bears out the value of this proposal. --Songs of praise have been sung everywhere (in a bankruptcy / professional sort of way)... Continue Reading →
Intransigence = Mediation Failures (the Nortel Networks Bankruptcy, Part Three)
By Donald L. Swanson Have you ever noticed that synonyms for "intransigence" often come from farm animals: e.g., bullheadedness, doggedness, pigheadedness, stubborn as a mule? Such qualities aren't very helpful on a farm. But they are killers in mediation. "Intransigence" describes the four-time failures of the Nortel Networks mediation efforts to reach a funds allocation and... Continue Reading →
Should We Choose “Confidentiality” Over “Ensuring Good Behavior” in Mediation? A Legal Malpractice Debate in California
By Donald L. Swanson In the early 1980’s, mediation began gaining acceptance in California as a means of resolving disputes. Since then, California law has placed a high value on mediation confidentiality and privacy. The Supreme Court of California, in Simmons v. Ghaderi, 44 Cal. 4th 570, 588, 187 P.3d 934, 80 Cal. Rptr. 3d... Continue Reading →
Discovering How Mediation Can Bring Order Out of Chaos
By Donald L. Swanson Eons ago, as measured by the short history of bankruptcy mediation, we are representing a creditor in a contentious Chapter 11 case. The case has many creditors, a wide range of constituencies and a chaotic existence. Efforts to bring order are having limited success. So someone suggests mediation. Most parties think... Continue Reading →
Mediation is “A Very Young Profession”: A New Study of Mediation in the U.K. [Part 2]
By Donald L. Swanson “Commercial mediation is firmly established in the dispute resolution landscape. We are, however, still a very young profession.” This is a finding of the Centre for Effective Dispute Resolution (located on Fleet Street in London, England) in its “Seventh Mediation Audit: A survey of commercial mediator attitudes and experience” dated May... Continue Reading →
ACTION ITEM: From Part Six — Differing Priorities
Action Item. An urgency and an immediacy exist in business bankruptcy cases to preserve and maximize value—otherwise there will be nothing for creditors to fight over. Mediation plans, strategies and models must provide immediate help in these urgent situations.
MEDIATBANKRY 