Setting Interim and Ultimate Goals for a Mediation Effort

By Donald L. Swanson “the Court finds that mediation may be an efficient and effective mechanism . . . to consensually resolve or narrow the objections to the plan.” --Hon. Stuart M. Bernstein, U.S. Bankruptcy Judge, Southern District of New York, in Avaya Inc. mediation referral Order dated 9/13/2017 (emphasis added). We can all take a... Continue Reading →

There is NO Split of Authority on Make-Whole Premiums Between the Second and Third Circuits

By Donald L. Swanson The consensus I’ve been reading these days is that a split of authority is shaping up between the Second and Third Circuit Courts of Appeals on enforcability of make-whole premiums in bankruptcy. --The first of two cases is from the Third Circuit: In re Energy Future Holdings Corp., 842 F.3d 247 (3rd... Continue Reading →

How, (i) Early Neutral Evaluation is Tricky, and (ii) Neutral Mediators Assist Parties in Evaluation

By Donald L. Swanson The problem with early neutral evaluation is this: it’s a prediction. An early neutral evaluator is an expert, who is trying to predict what a judge, jury or appellate court will decide about the merits of a dispute. Early Neutral Evaluation – A Tricky Business Prognostication is always a tricky business.  And... Continue Reading →

Four Decades of Rocking the Boat on Bankruptcy Court Authority: The U.S. Supreme Court

By: Donald L. Swanson The U.S. Supreme Court has, for four decades, been rocking the boat [that's Justice Blackmun's metaphor] on bankruptcy court authority. First, they almost kill the Code—coming within one vote of declaring the entire Bankruptcy Code unconstitutional. Then they limit and mess with it some more. And now, finally, it seems they are... Continue Reading →

A Federal Bankruptcy Rule is Needed for Mediation Authorization and Confidentiality: Four Reasons Why

  By Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure.  A new Rule is needed to cover two specific subjects: (i) mediation authorization, and (ii) mediation confidentiality. All other areas of mediation practice and procedure can be addressed in local rules, provided that the... Continue Reading →

A Surprise Development at U.S. Supreme Court in Oral Arguments on Merit Management v. FTI Consulting

By: Donald L. Swanson The case before the U.S. Supreme Court is Merit Management Group, LP v. FTI Consulting, Inc., Case No. 16-784. The bankruptcy question is whether the § 546(e) safe harbor prohibits avoidance of a transfer made through a financial institution as escrow agent. Oral arguments occurred on November 6, 2017 [Footnote 1]. Justice... Continue Reading →

A Recommendation for Mandating Mediation in England and Wales

By: Donald L. Swanson The voluntary mediation scheme “does remain under-used.” --October 2017 Interim Report on Mediation in England and Wales England’s Civil Justice Council is an Advisory Body established under the “Civil Procedure Act 1997” to oversee and co-ordinate “the modernization of the civil justice system.” On January 28, 2016, the Council formed a Working... Continue Reading →

An Early History of Bankruptcy Statutes and Economic Conditions in the U.S.: 1776 to 1978

By: Donald L. Swanson This article is a two-centuries history of Federal bankruptcy laws and economic conditions in the United States: from the Declaration of Independence in 1776 through the enactment of the current Bankruptcy Code in 1978. The Late 1700s In 1776, at the signing of the Declaration of Independence, thirteen colonies along the... Continue Reading →

An Example of Mediation Success in Hostile and Difficult Circumstances (City of San Bernardino Bankruptcy)

By Donald L. Swanson Timeline for a Plan Confirmation Dispute November 11:  Creditor requests an order requiring mediation November 14 (a.m.):  Debtor objects to request for mediation order November 14 (p.m.):  Court orders mediation December 6:  Debtor and creditor reach a settlement agreement February 7:  Debtor’s bankruptcy plan is confirmed This timeline is from a... Continue Reading →

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