Why Don’t Consumer Cases Mediate?

By: Donald L. Swanson Mediation is firmly entrenched as a dispute resolution tool in bankruptcy.  Mediation is commonly and regularly used throughout the bankruptcy system.  And mediation’s value in bankruptcy is almost-universally recognized. A Mediation Gap But there are wide gaps in bankruptcy where mediation is still under-utilized.  One of the gaps is consumer cases. ... Continue Reading →

Mediation in the Early Stages of a Case: ABI’s “Bankruptcy Mediation” Book

By: Donald L. Swanson The "early parts" of a case under the reorganization chapters of the Bankruptcy Code (chapters 9, 11, 12 and 13) involve many difficult battles. Early battles are over such issues as relief from stay, cash collateral and DIP financing. The burden of litigation in such matters "can be tremendous," and such... Continue Reading →

A Surprisingly Successful Pre-Lawsuit Mediation

By Donald L. Swanson Nebraska statutes contain a Farm Mediation Act (Neb. Rev. Stat. § 2-4801 et seq). This Act requires a creditor to send notice of a mediation opportunity before attempting to collect a defaulted farm loan.  The statute says: “At least thirty days prior to the initiation of a proceeding on an agricultural... Continue Reading →

Pre-Lawsuit Mediation is Highly Effective Under Farm Mediation Laws

By Donald L. Swanson Who would guess that pre-lawsuit mediation would work well in resolving credit disputes between creditors and farmers in stressed financial circumstances?  But this is  precisely what has happened in farm states under farm mediation statutes. Mandatory v. Voluntary Pre-Lawsuit Mediation Statutes Many farm states have established mediation prerequisites for a creditor... Continue Reading →

An Early Mediation Intervention Brings Order Out of Chaos

By: Donald L. Swanson Here’s a scenario where early mediation intervention works: We’re at the beginning of a Chapter 11 case with lots of competing interests.  Everyone is in a fight-every-battle mode—and there are lots of battles to fight.  We’re past the initial flurry of motions for use of cash collateral and relief from stay,... Continue Reading →

Mediation at the Beginning of a Lawsuit — How it Works in Delaware

By: Donald L. Swanson It's always great to see the leaders in any realm continue to innovate. The Bankruptcy Court in Delaware is, most definitely, a leader on such matters as bankruptcy mediation. And this Court continually innovates. In 2004, for example, the Delaware Bankruptcy Court adopts mandatory mediation for preference actions.  And a telephone-participation... Continue Reading →

How a Contrarian Gets its “Motion to Compel Mediation” Denied

By Donald L. Swanson “for the reasons set forth on the record at the Hearing, the [Motion to Compel Mediation] is DENIED without prejudice.” U.S. Bankruptcy Judge, Delaware, July 20, 2016 Energy Future Holdings Corp. files Chapter 11 bankruptcy in 2014.  Along the way, it engages in a mediation process that resolves nearly all objections... Continue Reading →

Success of Mandatory Mediation Leads to an Expansion of its Role

By: Donald L. Swanson It's always great to see an experiment produce successes that lead to an expansion of the experimental endeavor. This success-and-expansion is exactly what's happened with mandatory mediation experiments in the Delaware Bankruptcy Court. Delaware's Mandatory Mediation The Delaware Bankruptcy Court began mandating mediation, by local rule, in preference cases back in... Continue Reading →

Mediating Pre-Packaged Plan Disputes: a Recent Example

By Donald L. Swanson Who would ever think that mediation could serve an important role in pre-packaged Chapter 11 cases? --After all, the essence of a pre-packaged plan is speed: all major issues are supposed to be resolved in advance of the bankruptcy filing so the plan can move promptly to confirmation. But disputes do... Continue Reading →

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