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Bankruptcy Finance ADR Blog
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Preferred Management of Preference Cases for Bankruptcy Mediation
by Jack Esher, MWI Bankruptcy & Finance ADR Panel When filing a group of preference cases, early retention of a mediator can help settle cases promptly and efficiently. In fact, retaining a mediator is mandated in Delaware within the first 120 days of filing a preference case. Early retention is most useful when the mediator utilizes a comprehensive case management approach, which focuses the process on settlement prior to mediation, providing significant cost savings and greater all-around efficiency. A Case Manager (CM) utilizes a schedule of procedures with due dates and deliverables to guide the standard preference case toward an early settlement. This is referred to as the “Settlement Track.” A case’s Settlement Track is markedly different from its Litigation Track. While the Litigation Track relies on numerous rules and deadlines in order to complete discovery, pretrial procedures, dispositive motions, and finally trial, the Settlement Track focuses expressly on communication between counsel...
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Bankruptcy Mediation Local Rules Make FL Mediators Report Bad Faith
By Tad Mayer, MWI Director of Commercial & Corporate Programs Should all mediators who conduct court-ordered mediations be required to report when parties fail to negotiate in good faith? In Florida, it appears so. As Patrick Mastronardo, the Director of the Florida Academy of Professional Mediators, writes: "In advisory opinion 2012-005, Florida Supreme Court's Mediator Ethics Advisory Committee stated a certified mediator may disclose a party failed to negotiate in good faith or willfully failed to appear at a court-ordered mediation as required by the local rules of the U. S. Bankruptcy Court for the Middle District of Florida." Apparently, reporting requirements that apply to bankruptcy mediation in Florida apply to all court-ordered mediation. The author explains that the opinion is based on ..."the Florida Rules that state 'a mediator shall comply with all statutes, court rules, local court rules, and administrative orders relevant to the practice of mediation.'" The impact on the mediator is...
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Indianapolis Removes Bankruptcy ADR Requirement
By Tad Mayer, MWI Director of Commercial & Corporate Programs In the United States Bankruptcy Court, Southern District of Indiana, the Indianapolis Division has eliminated the requirement for alternative dispute resolution (ADR) in Chapter 13 cases. General Order 13-0002 has now “modified and replaced” General Order 10-0002. This change only applies to the Indianapolis Division. The Order was signed by Chief Judge James K. Coachys on April 11, 2013 to take effect on April 15, 2013. It specifies that the Order applies to “…trustee motions to dismiss Chapter 13 cases in the Indianapolis Division.” Interestingly, ADR is still encouraged by the Court for these cases. For more information, the General Order is available at: www.insb.uscourts.gov/WebForms/genorder/130002.pdf Sources: www.theindianalawyer.com/indianapolis-bankruptcy-division-eliminates-informal-adr-mandate/PARAMS/article/31219 www.insb.uscourts.gov/WebForms/genorder/130002.pdf
Divorce Mediation Blog
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Divorce Support Kit & App from Sesame Street
Written by MWI Mediator, Heidi Werther. Have you ever heard that children are resilient? When my ex-husband and I separated when our children were 4 and 6 years old, people thought they were being helpful when they said, “your kids will be okay, kids are resilient”. Although there may be some truth to this comment, divorcing parents need to realize that divorce is a major transition, not only for them, but for their children as well. All children experience transition in various ways. It is important for parents to ensure their children know that both mommy and daddy still love them. It is also important to allow children to share their feelings and to ask the questions they have about divorce and what that will mean to them. As divorce can be an overwhelming and emotional time, many people feel they may need help and guidance. You may be asking...
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Meet a Divorce Mediator: Alan Jacobs
Alan Jacobs is a divorce mediator with MWI in Falmouth, MA serving the communities, and surrounding areas, of Upper Cape Cod. He brings over 25 years of experience helping individuals and organizations resolve conflict. Alan professionally trained with MWI in 1997 and later with Cape Mediation. He has also completed advanced Divorce Mediation Training and the Barnstable County Bar Association’s Family and Probate Conciliation Training. Alan is a member of the Academy of Professional Family Mediators and a founder and director of the Cape & Islands Mediation Collaborative, Inc. Alan currently assists individuals, groups and businesses in resolving conflicts and legal disputes as a private mediator through Falmouth Mediation, MWI and the Cape & Islands Mediation Collaborative and in the Barnstable and Nantucket County Courts with Cape Mediation. Through his relationships with MWI, the Cape & Islands Mediation Collaborative, Cape Mediation, and adjunct professionals on the Upper Cape, Alan works in partnership with...
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How to File for Divorce in Massachusetts
The following information explains how to file for divorce in Massachusetts via a 1A no-fault divorce. In order to file for divorce in MA, spouses need to complete and submit to the proper court the following Probate court forms: Joint Petition for Divorce Certified copy of civil marriage certificate R-408-Certificate of Absolute Divorce Separation Agreement (see below) Affidavit of Irretrievable Breakdown Filing Fee of $215 Financial Statements - Short form or Long form. Couples with children also need to complete the following additional forms: Child Support Guidelines Worksheet Affidavit Disclosing of Care and Custody of your Children Mandatory Parent Education Program. For a packet containing all of the forms mentioned above, click here. Additional forms are available online here and at the Probate and Family Court Department in your county. For help with completing Massachusetts divorce forms, contact Josh Hoch at 800-348-4888 x23 or jhoch@mwi.org. What is a Separation Agreement? A Separation Agreement is a written document that describes the terms of the divorce. Once signed,...
MWI Mediation Training Blog
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Conspiracy Theorists and Mediation
By Chuck Doran, Mediator I mediated a case in the mid-90’s that included a party who was dressed entirely in white and refused any offer to sit. Her daughter, who was in her early twenties and also dressed head to toe in white, stood directly behind her with her arms akimbo, as though she were praying. During a private session, she also intimated her belief that radio waves were projecting thoughts that were not her own into her head. In this situation, it would be all too easy to assume that the woman was crazy and incapable of partaking intelligently in the process of mediation. After all, her behavior was outwardly bizarre and nonsensical and she even said that she experiences thoughts she does not believe to be her own. In most people’s opinion, she must be crazy and trying to pursue the mediation would be a waste of everyone’s time. Taking a...
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An Introduction To Mediation and Alternative Dispute Resolution
By Diane Levin and Chuck Doran, MWI Mediation Trainers "The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried." Sandra Day O'Connor Mediation is a form of alternative dispute resolution, popularly known as "ADR". The term "ADR" describes a vast array of mechanisms for resolving disputes and differences outside the court. Although ADR has existed for centuries throughout the world in a variety of forms, during the 20th century social and cultural forces conjoined to produce the modern ADR movement, a revolution in the way people and institutions address conflict. The last 50 years in particular have witnessed the meteoric rise and broad popular acceptance of ADR in the U.S. and throughout the world. What were the forces that gave rise to ADR as we know it...
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Can't We All Just Get Along? An Overview of ADR Methods and Roles
This post is one of a series of articles on the process and practice of mediation and originally appeared in the "MWI Mediation Training Manual", written by Diane Levin and Chuck Doran. During the 20th century and into the 21st, the needs of individuals and institutions and the demands of the market have led to the development and refinement of numerous methods of ADR. Different disputes and disputants pose different challenges and arrive with different needs, and it is crucial, as early ADR pioneer Professor Frank Sander once observed, to "fit the forum to the fuss". The following are the most common kinds of ADR, although many more exist, some of which are hybrids or variations of the processes described below. Note the differing roles neutrals play across a spectrum of processes. ArbitrationArbitration is a form of private adjudication. Pursuant to law or by agreement of the parties, the parties submit...
MWI Negotiation Excellence Blog
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Bargain Hunting Follies and Defining Success in Negotiation
By Carl Kjellman, MWI Staff I worked in retail a number of years ago and a big part of my job was selling over-priced designer jeans. I noticed something interesting whenever the store had a sale. Jeans that we had been previously unable to sell would start to move after being marked down by some slight amount (especially marginal in light of the original price) and would really become hot ticket items once we marked them down by an additional and equally marginal amount a second time. I’m certain anyone who has bought anything on sale will recognize this pattern. It’s likely that part of the motivation is the sense that you’ve somehow “won” because the establishment is making a concession by lowering the price, which serves as an interesting point on which to consider how we define a “good outcome” in a negotiation. The shopping anecdote shows that many people judge...
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Dan Pink on Attunement, Clarity, and Sales Negotiations
by Chuck Doran, Senior Negotiation Trainer Dan Pink presented a lecture on sales at the Royal Society for the encouragement of Arts (RSA) that raised a number of interesting ideas that relate to negotiation. His talk covers a number of topics, but there are a few points of particular relevance to someone with an interest in negotiation. He presents the idea that people face the perennial challenge of selling something. In other words they will continue to encounter negotiations of varying scale in their lives. In his own words, "convincing or persuading people to give up something they value (attention, effort, money, time, etc.) for something you can offer…" Citing examples such as convincing colleagues to spend time and energy working on your project as opposed to another one. The takeaway, then, is that learning to negotiate skillfully is essential for most anyone. He goes on to propose a few skills and ideas...
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The Value of Empowering Your Negotiation Counterpart to Collaborate
Businessdictionary.com defines the Self-Fulfilling Prophecy as “[E]xpectations about circumstances, events, or people that affect a person’s behavior [such that] he or she (unknowingly) creates situations [that fulfill] those expectations.” In other words, your predictions about a situation (and therefore how you act in that situation) will cause those predictions to come true. But what does this have to do with you as a negotiator? More than you think. In a typical negotiation with at least two partners per side, your beliefs about them, and what you anticipate from them, will influence your actions, which will in turn influence their reactions. When your counterparts on the other side of the table are in disagreement with each other, they look to you to confirm or disconfirm their various hypotheses. Therefore, your actions inevitably and directly prove one side correct and the other incorrect, thereby empowering one faction over another, influencing their behavior and...
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