Early Mediation is Effective in Bankruptcy — More So Than in Other Disputes

By: Donald L. Swanson "When is the optimum time to mediate?" A 2015 Study That question is addressed in a 2015 study of 400 mediations titled, “Inside the Caucus: An Empirical Analysis of Mediation from Within.” These mediations were conducted by one of the study's authors, between 2008 and 2013, on employment disputes (e.g., discrimination and... Continue Reading →

Resisting Fraudulent Transfer Temptations — Family Businesses

By: Donald L. Swanson About a decade ago, I have an appointment scheduled in my office with two brothers. I’m excited, because they are the principals of a major family business in our region. I’m aware that their business is facing economic headwinds and am assuming they want my counsel on managing their business difficulties. Our... Continue Reading →

Mediation as “Entirely-Voluntary”: An Unexamined Value That’s Not Worth Keeping

By Donald L. Swanson The unexamined life is not worth living. --Plato And an unexamined value is not worth keeping.  Here’s an unexamined value in mediation that’s held by many people: --“Mediation is an entirely-voluntary process and should not be mandated.” This value is expressed in many ways, such as: --“I will not order parties to mediate”... Continue Reading →

Enactment of the Bankruptcy Code in 1978: A Short History

By: Donald L. Swanson Congress must be allowed “to fashion a modern bankruptcy system which places the basic rudiments of the bankruptcy process in the hands of an expert equitable tribunal.” --Justice Blackmun, dissenting in Granfinanciera v. Nordberg, 492 U.S. 33 (1989). Forty years ago -- back in 1978 -- Congress enacted the current Bankruptcy Code.... Continue Reading →

Applying a U.S. District Court’s Local Mediation Rule in Bankruptcy Court: Iowa & Minnesota Examples

By: Donald L Swanson Historically, bankruptcy courts and bankruptcy professionals have been lagging adopters of mediation. They’ve been slow to utilize mediation for resolving bankruptcy disputes, and they’ve been slow to adopt local rules on mediation. Today, however, 76 (80.85%) of all 94 bankruptcy court districts have a local mediation rule of some type (see this... Continue Reading →

A Strategy to Beat the Absolute Priority Rule in Family Business Bankruptcies

By: Donald L. Swanson The absolute priority rule is the greatest legal impediment to reorganizing a family business under Chapter 11—no other legal impediment is even close. In what follows, I offer a strategy for beating that rule. The Absolute Priority Rule The absolute priority rule is a Chapter 11 plan confirmation requirement. It says:... Continue Reading →

Mediation Confidentiality: Defenses Raised and Rejected

By Donald L. Swanson The Judges are irritated, to begin with. If anything is clear in In re Anonymous, 283 F.3d 627 (4th Cir. 2002), it’s this: the Judges on the U.S. Court of Appeals are more-than-slightly unhappy with the two attorneys in the case. A Confidentiality Issue The Court hauls two competing attorneys before the... Continue Reading →

Representing Family Businesses in Financial Stress

By: Donald L. Swanson I’ve been practicing law since 1980. A major portion of my practice, throughout those decades, has been in bankruptcy and related areas of law. And I’ve represented all sides: debtors, creditors, trustees, committees, etc. During that time, I’ve counseled hundreds of family businesses and their owners—helping each walk through a period of... Continue Reading →

The Problem of Representing a Small-Player in a Multi-Party Mediation

By: Donald L. Swanson Have you ever been in a multi-party mediation representing a small-player in the dispute. I don’t mean your party is “small”: I mean that your party’s position in the over-all dispute (while extremely important to the client) is viewed by others as a lower-tier issue. I have. And it’s a difficult situation:... Continue Reading →

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