“How Do I Get a Bankruptcy Case to Mediate?” Or . . . “How Do I Find Someone to Mediate My ‘Smaller’ Bankruptcy Case?”

By Donald L. Swanson

You are out there: professionals who’ve had mediation training and are set-to-go as mediators of bankruptcy disputes but, alas, are still looking for cases to mediate.

I’d like to introduce you to some attorneys who can’t afford a mediator for their smaller-amount cases: they are reading this article.

Attorneys with smaller-amount cases, say “Hi” to mediators looking for cases to mediate: they are reading this article, too.

First of all, let’s acknowledge reality: every trained mediator trying to develop a mediation practice has the same start-up problem. No one is immune. Every now-successful mediator started out with one case . . . then another . . . then another . . . etc. . . . and often with long droughts in between.

Similarly, there are attorneys out there with smaller-amount cases who would like to mediate their dispute but figure the case economics won’t allow it.  So . . . they don’t even consider the mediation possibility.

Here’s the deal:

–Mediators-getting-started are more-than-happy to mediate cases for a modest flat-fee or a reduced-hourly-rate.  What they need is a case to mediate.

–Attorneys wishing they could get a modest flat-fee or reduced-hourly-rate mediation need to find these mediators.

Getting that first one or two or three cases to mediate can be a daunting task for a newly-trained mediator. It’s sort of like trying to find a job when unemployment is high — law school graduates from 2009 and a few years thereafter can empathize.

Here’s a two-step suggestion for mediators:

Mediators wanting to get started in the bankruptcy mediation world should:

1.  Develop a strategy to mediate smaller-amount disputes in half-day sessions for a modest flat fee; and

2.  Identify practitioners who handle those types of cases, and make yourself a pest at selling them on your strategy.

Here’s a one-step suggestion for attorneys:

Attorneys wanting to get a modest flat-fee or a reduced-hourly-rate mediation should:

–Look for mediators who are following the two-step suggestion above.

Types of smaller-amount cases

The smaller- amount cases I’m talking about include these:

–dischargeability actions  [Editorial Note:  These actions are frequently filed, are difficult for either party to justify economically, and are prime mediation prospects.]

–confirmation of contested plans in Chapter 13 and individual Chapter 11 cases

–objections to exemptions

–transfer avoidance lawsuits

–objections to proofs of claim

–any adversary proceeding in which a summary judgment motion is denied.

Promotional targets for mediators

Practitioners to identify as promotional targets for mediators in small-amount cases are:

–attorneys for debtors

–attorneys for creditors

–attorneys for trustees

[Editorial Note: this list is intended as a joke because it includes nearly every bankruptcy attorney out there, excluding large-case and mega-case folks — but as I re-read the list . . . it’s not all that funny.]

A selling point to such practitioners is this: they don’t need to incur an extra cost of preparing mediation statements in advance of the mediation session because pleadings, motions, exhibits, schedules, orders, etc., are already available to the mediator on the CM/ECF system,

As Chair of a Bankruptcy Court Mediation Committee, I’ve been promoting this suggestion for years. The number of takers to date is [ … drum roll … ] zero—that I know of. For years I’ve thought some mediator would catch a vision around this suggestion, pursue it, and make it work. No such luck—as far as I can tell.

So . . .

–for all you newly-minted mediators out there, I suggest following the two-part suggestion above.

–for all you attorneys out there who would like to find a low-cost mediator for your smaller-amount case, I suggest that you look for mediators who are following the two-part suggestion above.

A mediation opportunity is out there for someone to seize. And this opportunity exists in every jurisdiction.

It’s not an easy task. But it can work.

Action Items.

–A plan of action for a start-up mediator is this: develop a strategy for mediating smaller-amount disputes in half-day sessions for a modest flat-fee, promote the strategy with every bankruptcy professional you know, persist with the strategy over time and through disappointments, and make it work.

–A plan of action for an attorney wanting to mediate a smaller-amount dispute is to look for a mediator who is following-through on the preceding action item.