Another Demonstration of Uncertainty Over Mediation Confidentiality in Bankruptcy

By: Donald L. Swanson "The court declines to adopt a new mediation privilege under the facts of this case." --Judge Cynthia A. Norton, U.S. Bankruptcy Judge  -- December 19, 2016 The case is In re Lake Lotawana Community Improvement District, a Chapter 9 municipale bankruptcy in the Western District of Missouri (Case No. 16-42357).  The issue... Continue Reading →

Five Lessons From A New Court Ruling: How a Mediated Settlement Creates Further Disputes

By: Donald L. Swanson The Court’s opinion is new: entered December 23, 2016. The case is In re Hunt, Case No. 14-13109, in the New Mexico Bankruptcy Court. The dispute is between the Chapter 13 Debtor and his home mortgage lender. Scheduled value of the home is $155,000, and the mortgage lien balance is $223,631... Continue Reading →

Action Item:  Every bankruptcy court should have its own set of local rules on mediation.  Every bankruptcy court without such rules needs to get them adopted.  In the words of a famous Nebraskan:  Let’s "git-r-done!”

How to Mediate in Bankruptcy Courts Without Local Mediation Rules: A Seldom-Used Pathway

By: Donald L. Swanson Mediation is standard dispute resolution tool in many bankruptcy cases – especially in large and complex cases. A limited number of bankruptcy courts, however, still haven’t adopted local mediation rules.  Reasons for the absence of such rules are diverse and range from: --the somewhat-bizarre development in Chicago, where the Bankruptcy Court... Continue Reading →

Structured Dismissals are Ripe for Mediation – But are They a Bridge Too Far?

By Donald L Swanson A “structured dismissal” of a Chapter 11 bankruptcy involves a settlement agreement among major parties that liquidates substantially all of debtor’s assets, distributes the proceeds, grants releases, and dismisses the bankruptcy case—all as a negotiated package deal. Most everyone will agree that a bankruptcy settlement with the following terms is a... Continue Reading →

Mediators Just Want to Get Paid: A Recent Hiccup in Bankruptcy

By Donald L. Swanson "Girls just want to have fun," according to Cyndi Lauper. --And mediators just want to get paid! We receive an important lesson for mediators getting paid out of bankruptcy from a recent mediation hiccup.  The lesson is this: --If you want to get paid from bankruptcy estate funds, you need court... Continue Reading →

What’s With Judges Wanting to Re-Write Settlement Agreements?!

By Donald L. Swanson What’s with judges re-writing terms of bankruptcy settlement agreements?! A Current Example That’s exactly what the dissenting judge wants to do in the In re Jevic Holding Corp. case (certiorari granted by U.S. Supreme Court on June 28, 2016; oral argument held on December 7, 2016). This dissenting judge would: (i)... Continue Reading →

Mediation Confidentiality: The Second Circuit’s Sensible Standard for Disclosure

By: Donald L. Swanson “Confidentiality is an important feature” of mediation, because it "promotes the free flow of information that may result in the settlement of a dispute." “We vigorously enforce the confidentiality provisions” of our own mediation system “because we believe that confidentiality is essential" to its “vitality and effectiveness.” U.S. Second Circuit Court... Continue Reading →

1899 Treatise (First Edition) on U.S. Bankruptcy Law

By: Donald L. Swanson Original-source documents from antiquity are always fascinating!  They provide a wealth of historical information and a wealth of insight into life in an earlier day. It’s mind-boggling, for example, to read the words of an author, who lived in an ancient time, writing about events of “ancient days” from his/her perspective-in-time.... Continue Reading →

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