If I were a Bankruptcy Judge, I’d be Promoting Bankruptcy Mediation Now — Part One

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By Donald L. Swanson

If I were a bankruptcy judge [I’m not and have no aspirations to become one], I’d be doing everything in my power to promote mediation in my court—right now.

For example, I’d adopt local rules on mediation, establish mediation requirements for adversary proceedings and Chapter 11 plans, look for cases where mandatory mediation orders might be helpful–and issue such orders, etc. Here’s why: to manage my future workload when bankruptcy filings pick back up again. 

Granted, we are currently in an off-season for bankruptcy cases—filings are at low levels—and we’ve been here for a couple years already. During this off-season, bankruptcy court support staff numbers are declining throughout the system, and judge vacancies are remaining unfilled.

However, history shows that this off-season will not last forever. The day will come [and, perhaps, soon] when bankruptcy court workloads will return to heavy levels. When that day arrives, support staff hirings and new judge appointments will take time to ramp back up.

So, I’d be promoting mediation now and getting attorneys accustomed to mediation as a standard dispute resolution tool in my court. Then, I’ll be ready for an increased work load when the season changes.

My view on this point is intense because I’ve seen bankruptcy seasons change before—okay, okay, I’ve been at this bankruptcy thing long enough to have seen seasons change many times.

Action Item.   We should all be encouraging our local bankruptcy courts to adopt local rules on mediation, establish mediation requirements for adversary proceedings and Chapter 11 plans, look for cases where mandatory mediation orders might be helpful–and issue such orders, and get the local bar accustomed to using mediation as a standard dispute resolution tool.

Part Two will look at an example of how a season changed in the early 1980s.

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