Your Leadership is Needed Now: A Plan for Adopting Model Local Rules on Mediation

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By Donald L. Swanson

Football season arrives in the fall, basketball in the winter, and baseball in the spring. During the season, players practice and play games.  During the off-season, players make adjustments they don’t have time to address during the season.

Bankruptcy is a seasonal game.  But the season is not months in a year: it’s years in a decade.  We are in a bankruptcy off-season now—and have been for a couple years.  So, now is the time for bankruptcy practitioners to prepare for the coming season.

Until recently, the worlds of bankruptcy and mediation rarely met.  But this reality is changing, as reflected, for example, by the use of mediation in the Detroit bankruptcy case.

Many bankruptcy jurisdictions have already adopted local rules on mediation. But many have not (the “Deficient Jurisdictions”).  And, typically, mediation is non-existent in the Deficient Jurisdictions.

Accordingly, the Mediation Committee of the American Bankruptcy Institute (“ABI”) developed a set of Model Local Rules for Mediation. Model Rule 1 on mediation procedures is printed here, and Model Rule 2 on mediator appointment and compensation is printed here.

What’s needed now is local leadership!  Professionals in each Deficient Jurisdiction are needed [you know who you are] to step forward and provide local leadership for adopting local rules on mediation.  And such leadership activity needs to happen now—before the next bankruptcy season begins.

Action Item–A Plan. Here is a plan for immediate leadership action by one or more enterprising professionals in each jurisdiction that is deficient on local mediation rules:

1. Gather a group of bankruptcy professionals to develop and execute a plan for garnering support among bankruptcy bar groups, the U.S. Trustee’s Office and the judges [and especially the judges] for adopting local mediation rules;

2. Seek formal appointment of a local Bankruptcy Mediation Committee to prepare a document adapting the Model Local Rules for inclusion into existing Local Rules; and

3.  Pursue formal adoption of the proposed rules.

A resource for pursing such efforts is the ABI Mediation Committee.  Leaders for such Committee can be found under the “Leadership” tag on this page.  Leaders of the ABI Mediation Committee should be kept apprised of all efforts toward preparing and adopting local mediation rules as such efforts begin and progress.

Conclusion:  An immediate opportunity exists in each of the Deficient Jurisdictions for someone to step forward and provide local leadership to get local mediation rules prepared and adopted.  The time to seize the opportunity is now.

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