6 Reasons Why Bankruptcy Mediation is a Process, Not a One-and-Done Session: PART SIX — DIFFERING PRIORITIES

By Donald L. Swanson Non-bankruptcy cases usually have a different priority than bankruptcy cases: namely painting a picture v. maximizing value. In non-bankruptcy cases, an event or series of events occur, and the focus is, typically, on (i) painting a clear picture of what happened, and (ii) assigning or absolving liability accordingly. In non-bankruptcy cases,... Continue Reading →

The Monstrous Costs of Mediation Failures (the Nortel Networks Bankruptcy, Part One)

By Donald L. Swanson A sale in bankruptcy of assets owned by Nortel Networks Inc. results in a $7.3 billion (yes, that's $7,300,000,000) pot of gold for creditors. Guess what: creditors can't agree on how to divide the pot. So what do creditors do instead? They spend $2 billion from the pot of gold on... Continue Reading →

Facilitative v. Evaluative Mediation = It’s Both: A New Study of Mediation in the U.K.

By Donald L. Swanson --Mediators “showed a marked preference toward” a facilitative style of mediation, but --Mediators “believe that parties and their advisers expect them" to use an evaluative style of mediation. These findings are recently published (on May 11, 2016) by the Centre for Effective Dispute Resolution (located on Fleet Street in London, England)... Continue Reading →

6 Reasons Why Bankruptcy Mediation is a Process, Not a One-and-Done Session: PART FIVE — MULTIPLE PARTY REALITIES

By Donald L. Swanson Two-party and three-party mediations can fit well into a one-and-done session model. But four and more parties are difficult to manage in a one-and-done. Consider this: in a four-party mediation that begins at 9:30 a.m. with a 30 minute joint meeting and a 30 minute caucus with each party, it’ll be... Continue Reading →

Multi-Party Mediation: How it Can Work Well — Detroit and Archdiocese Examples

By Donald L. Swanson Multi-party mediation can work effectively in bankruptcy, especially on plan confirmation issues.  Such effectiveness is apparent in the City of Detroit and the Archdiocese of Milwaukee bankruptcy cases. Keep in mind that these Detroit and Archdiocese mediation efforts aren’t merely multi-party in the sense of five or six parties.  These mediation... Continue Reading →

Compelling a Mediator to Testify: Here’s How it’s Done

 By: Donald L Swanson "Testimony from the mediator would be crucial . . . and . . . refusing to compel that testimony posed a serious threat." "It became clear that the mediator's testimony was essential to doing justice here--so we decided to use it." Wayne Brazil, Magistrate Judge, U.S District Court for Northern California... Continue Reading →

ACTION ITEM: from Part Four — The Freshness of the Fight

Action Item. In every bankruptcy mediation where the fight is still fresh, we need to recognize that a one-and-done session expectation is probably unrealistic—and adjust our expectations accordingly.

6 Reasons Why Bankruptcy Mediation is a Process, Not a One-and-Done Session: PART FOUR — FRESHNESS OF THE FIGHT

By Donald L. Swanson I’m in a mediation session for a state court commercial case. The parties have been at it for a couple years. And everyone’s expectation is that this will be a one-and-done session. One of the first things Plaintiff’s president says to me is, “Can you believe we’ve paid over [$xxx] in... Continue Reading →

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