Getting Mediators Approved and Paid in Bankruptcy

By Donald L. Swanson Every now and then a mediator gets stiffed on fees.  It doesn’t happen often.  But it happens.  And it’s always a shame. Mediators of bankruptcy disputes have an additional payment-related hurdle they must navigate.  The hurdle is this: --Advance court approval is required for getting paid from bankruptcy funds. Statutory Requirements... Continue Reading →

Financial Impairment On The Farm: What’s A Farmer To Do?

On July 30, 2019, Kristine Tidgren of Iowa State University and I presented a webinar for farmers titled, "Financial Impairment on the Farm." My portion of the webinar focuses on, "What's a farmer to do when the bank wants out?"  Kristine's portion focuses on related tax issues.  Here's a link to the webinar: Link:  YouTube audio... Continue Reading →

Mediating Business Disputes: Caucus Format is Unfortunate

By: Donald L. Swanson Should a mediation be in joint session or caucus? For mediating business disputes, joint session is the better approach—by far. I’ll try to explain. Two Observations Here are two observation about the joint session vs. caucus method for mediating business disputes. 1. People with little-or-no experience in mediation tend to expect a mediation... Continue Reading →

How the Bankruptcy Stay Passed Constitutional Muster — A Depression-Era Opinion that’s a Model for Today

By: Donald L Swanson The automatic stay is one of the basics of our bankruptcy laws. It’s a foundational rule for the entire bankruptcy system. But that hasn’t always been the case. In fact, the U.S. Supreme Court, in a Depression-era case, had to decide whether a bankruptcy stay is constitutionally permissible. And, fortunately, the Supreme... Continue Reading →

What To Do When A Party Is Secretly Taping A Mediation Session

By: Donald L. Swanson The State of New York has a “Mediator Ethics Advisory Committee.” A mediator asked this Committee for an advisory opinion on what to do in the following circumstances (here's its opinion). Facts During a private session, the mediator notices that a party has a tape recorder on her lap. The mediator asks if... Continue Reading →

Merchant Cash Advance Loans as Preferences: Contrasting Judgments

By: Donald L Swanson Merchant cash advance loans provide ready-cash for businesses in desperate need of cash. Because of the desperation, terms of merchant cash advance loans can be oppressive. For example: Repayments are made daily—by automatic cash withdrawals from debtor’s bank account; Rates of return, if repaid as scheduled, often range from 50% per annum... Continue Reading →

U.S. House of Representatives Passes Bi-Partisan Bankruptcy Bill — It’s True!

By Donald L. Swanson On July 25, 2019, the U.S. House of Representatives passes on voice vote H.R. 2336, which raises the debt limit for Chapter 12 eligibility from $4.4 million to $10 million.  And both parties voted, "Aye"! Who would've thunk it: bi-partisan action by a partisan political body, in today's political environment?! The subject... Continue Reading →

Small Businesses and Entrepreneurs in Financial Stress Need a Chapter 12 Solution

By Donald L. Swanson It’s been 40 years since enactment of the Bankruptcy Code [Fn. 1].  And the Code has been highly effective in many contexts. But the Bankruptcy Code is, and always has been, inadequate for the needs of small businesses and entrepreneurs in financial stress.  Congress needs to address this deficiency. What Works &... Continue Reading →

Effect of Interruptions on Decision Making: Implications for Mediation?

By: Donald L. Swanson “Interruptions increase risk taking by reducing apprehension.” From “The Effect of an Interruption on Risk Decisions” [Fn. 1]. Seven studies by three professors focus on the effect of a brief interruption that occurs when a person is confronted by the need to make a risky financial decision. My point in this article... Continue Reading →

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