On Bankruptcy and Mediation
By: Donald L. Swanson Mediators and mediating parties beware! The Facts The mediation of a contentious commercial case concludes without an agreement. But the mediator keeps trying. The mediator sends a post-mediation email to counsel for “Jonathan” conveying a proposal, which includes these statements from the other party: --“Jonathan knows the extent of his wrongdoings... Continue Reading →
By: Donald L. Swanson In Omaha, Nebraska, where I live and practice, mediation plays a central role in civil litigation outside the Bankruptcy Court. And it's playing an increasing role in Bankruptcy Court as well—but that's a story for another day. Mediation is a vital part of the civil litigation culture around here. And it's... Continue Reading →
By: Donald L. Swanson Conventional thinking (as I understand it) is that mediators should not have a role in preparing a settlement-terms document that concludes a successful mediation. I'm suggesting that a mediator can/should have a limited-and-neutral role in preparing such a document. Here's why. Some Ancient History Its 25 years ago -- or more.... Continue Reading →
By: Donald L. Swanson I’m scanning a news article earlier this week. The term “militant open-mindedness” catches my eye. My immediate reaction is excitement: --“Oh great! This will provide a lesson and analogy for mediation!” --After all, “open-mindedness” is “a receptiveness to new ideas” and a belief that “others should be free to express their... Continue Reading →
By: Donald L. Swanson One reason given by the Chicago Bankruptcy Court for the recent revocation of its Local Mediation Rules is this: --Several Judges in the Chicago Bankruptcy Court have agreed to mediate cases for their colleagues on that Court. The pickle is this: --such intra-court mediator appointments create a conflict of interest. This... Continue Reading →
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... Continue Reading →
By: Donald L. Swanson A tragedy of recent Chapter 11 times is this: --it looks like Congress tried to remove the absolute priority rule from individual Chapter 11 cases (see the "individual" exception in § 1129(b)(2)(B)(ii) photo above); but Congress didn't quite get the removal words right, according to subsequent court rulings. We now have... Continue Reading →
By: Donald L. Swanson Mandatory mediation is a good thing [see, e.g., my blog post titled, "Local Bankruptcy Rules Without Mandatory Mediation are Like a Toolbox Without a Vise-Grip"]. But the words "mandatory mediation" refer only to a required process. They do not suggest any such thing as compelled settlement or compelled concession or even... Continue Reading →
By Donald L. Swanson Bankruptcy often deals with failure, loss, and broken promises. So it has a bad reputation. But bankruptcy often provides a valuable service in time of need. And we now have a new example of this: --a company that supplies total artificial hearts to people at death’s door. SynCardia Systems, Inc., filed... Continue Reading →
By Donald L. Swanson I don't need to see a study or commission report for the title of this article. I've seen the problem play out many, many times in real life. Here is an attempt to explain. Some Propositions Proposition # 1: When one party has 0% odds of success at trial, a mediation... Continue Reading →
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