Proactive Mediation is Becoming Standard: The Syngenta Example

By: Donald L. Swanson In a remarkable demonstration of cooperation and coordination, three separate courts (both Federal and State) enter proactive mediation orders and appoint the same mediator in three related cases. Fact Background The cases involve a genetically modified strain of corn developed and marketed by Syngenta.  The new strain gets regulatory approval from... Continue Reading →

ACTION ITEM: From Preparing for Multiparty Mediation — Part Three

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 →

Preparing for Multiparty Mediation: A Checklist — Part Three, Items 6-10

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 →

Usual Formula [Unsecured Claim + Bankruptcy = You Lose] Doesn’t Apply (the Nortel Networks Bankruptcy, Part six)

By: Donald L Swanson Unsecured Claim + Bankruptcy = You Lose. I came up with this formula back in 1983, while preparing for a seminar presentation on basic bankruptcy law.  I was trying to come up with something creative to say.  And . . . I must confess . . . I thought it was... Continue Reading →

ACTION ITEM: From Preparing for Multiparty Mediation — Part Two

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 2011 Judicial Scolding Had No Discernible Effect on Mediation Efforts (Nortel Networks Bankruptcy, Part Five)

By: Donald L Swanson Back in 2011, the Third Circuit Court of Appeals wrote a scathing opinion about the behavior of the disputing parties in the Nortel Networks bankruptcy case. The Third Circuit's opinion is published at In re Nortel Networks, Inc., 669 F.3d 128 (3rd Cir. 2011). However, the Third Circuit's judicial scolding has had... 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 →

Blog at WordPress.com.

Up ↑

%d bloggers like this: