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In the last edition of this newsletter, Ed Schnitzer provided us with an excellent summary of the how and when a mediator may determine the absence of good faith. With an eye on topics of interest, Don Swanson republished Ed’s article on his weekly blog with an invitation for comment. I did just that and my response elicited further comment from many colleagues. Judi Fitzgerald has invited me to restate my concerns in this brief article to stimulate further inquiry and discussion on this important topic.
ABI has been running a mediation training program in conjunction with St. John’s Law School each December for the past nine years. This program stands apart from other programs that are available for training in a more generalized capacity. The history of its development, as well as the specific structure of the program, make it the premier mediation training for anyone involved in bankruptcy-focused mediations. The program provides a truly unique training experience for bankruptcy professionals, advocates, client representatives and/or mediators.
You were just recently selected as the mediator in a large chapter 11 case, and the judge happily approved your selection. You prepare, you schedule, and you then look forward to what you believe will be a successful mediation session.
Alas, it is not to be. The mediation is not only unsuccessful, but at least one party may not have participated in good faith. What do you do? The answer to that question may depend on what court you are appearing before, the rules set forth in the general and/or case-specific ADR order, and the nature of the conduct of the offending party.
A recent article in the Lawyers Journal published by the Allegheny County Bar Association, “Early Neutral Evaluation in the Western District of PA,”[1] addressed the early neutral evaluation (ENE) and mediation opportunities that are part of the mandatory ADR program in the U.S. District Court for the Western District of Pennsylvania. In that program, the parties may choose ENE, mediation or arbitration. An interesting statistic provided that in 2017, 18 percent of parties in eligible cases chose ENE and 80 percent chose mediation.
I find it surprising that sometimes people do not appreciate that mediation is an artform. There are some who hold the misguided view that mediation is simply another form of court-directed settlement conference. However, mediation is not a settlement conference. Rather, mediation is a specialized process designed to facilitate a resolution of the pending dispute between the parties by engaging those parties in the process so that they can come to a resolution that meets their individual needs.
In December, 2016, the executive committee of ABI’s Board of Directors created the ABI Commission on Consumer Bankruptcy. The Commission is comprised of seventeen members charged with examining the consumer bankruptcy system and delivering a report in December 2018 with recommended improvements.
