We Need Regional Mediation Hubs for Mega-Case Avoidance Actions — Part One, The Proposal


By Donald L. Swanson

My Nebraska client has a problem.  He’s unhappy.  He’s an $80,000 preference defendant [what can be worse than that?] in Delaware [oh, yeah, that could be worse] and must travel 1,200 miles [with his attorney] for a mandatory mediation of the disputed preference claim.  Although he thinks the claim is “bogus” [despite my explanations to the contrary], he has a what-choice-do-I-have-but-to-capitulate perception of all this.

So, I have a proposal to address the problem: Regional Mediation Hubs.

The proposal comes about like this.  I walk into a lunch-time session of the ABI’s Mediation training course at St. John’s University, sit by a distinguished-looking gentleman and start chatting—as if he is one of my peers.  Turns out, he’s the lunch-time speaker.  He is the Bankruptcy Judge for many of the mega-cases we’ve all read and heard about.  [Oops.  Didn’t know that…sit up straighter in my chair…try to adopt a more dignified air…].  During the presentation, he talks about difficulties in mediating cases on the East Coast for far-away defendants.  “Like those from Nebraska,” he says with a nod to me [a nice and much-appreciated touch].  And he expresses openness to suggestions for addressing those difficulties.  Unfortunately, I have no suggestion at the time, other than allowing defendants to participate in mediation sessions by Skype.  That’s “not acceptable,” the Judge says.

Having thought on it further, Regional Mediation Hubs seem to be a good accommodation.

Action Item.  Here’s the proposal: hold mediation sessions in regional hub cities near where multiple defendants reside (instead of Wilmington or New York City) and include trained mediators from those regions on the panel of mediators.

Note: This is the first part of a three part series.  The next two parts will review case illustrations from fly-over country and from the West Coast.

Also: An expanded version of this article was originally published in the March 2016 edition of the ABI Business Reorganization Committee Newsletter (Vol. 15, Num 1).

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