On Bankruptcy and Mediation
By: Donald L Swanson Subchapter V exists "to improve the reorganization process for small business chapter 11 debtors." In re Wright, Case No. 20-01035 (Bankry.S.Car., Order dated 4/27/2020, Doc. 37 at 5). Charles Wright (“Debtor”) files a Chapter 11 case on February 28, 2020, designating himself a small business debtor and electing to proceed under Subchapter... Continue Reading →
By: Donald L Swanson October 31, 2018, was the 20th anniversary of the Alternative Dispute Resolution Act of 1998 (the “ADR Act”). [Fn. 1] The ADR Act has had a profound impact on the practice of law throughout the federal court system. However, it also has shortfalls that are yet to be rectified. A Mediation Model:... Continue Reading →
We have failed to craft a bankruptcy relief that is viable for the needs of today’s entrepreneurs.
By Donald L. Swanson On December 20, 2018, the United Nations General Assembly adopted a United Nations Convention on International Settlement Agreements Resulting from Mediation, and 52 countries have signed that Convention. It deals with enforcing mediated settlements of international commercial disputes. A Survey Leading up to adopting the Convention, studies were made to determine the... Continue Reading →
By: Donald L Swanson The phrase, “honest but unfortunate debtor," has been a part of bankruptcy laws for centuries. A bankruptcy treatise published in 1801, for example, says that bankruptcy laws in England and the U.S. "are meant to protect an honest but unfortunate trader." [Fn. 1] No one knows when or how the phrase began.... Continue Reading →
By: Donald L Swanson “All your assumptions on this are wrong.” --A visionary, back in 1999, on why video communications will work. Change It was nearly a decade ago, when I suggested participating in a mandated and far-away mediation by Skype. The Judge said, “No, because face-to-face communication is essential to mediation.” It was nearly a... Continue Reading →
By: Donald L Swanson Cash in a business is like blood in a body: without it, you die! A Huge Challenge Cash availability is a huge challenge for family businesses in bankruptcy. Here’s why: Running out of cash is a common symptom of financial stress that leads to bankruptcy; and A bankruptcy filing will magnify that... Continue Reading →
By: Donald L Swanson Parties and their attorneys can misbehave in mediation. It happens . . . not very often—but it does happen. Sometimes, the misbehaviors can result in sanctions—but most times, they do not. This article is about two companion opinions, issued by the same court (U.S. Eleventh Circuit Court of Appeals) and within a... Continue Reading →
By: Donald L. Swanson Over the years, there have been some really-bad ideas for punishing debtors. Examples from Olden Times Under Draco’s Law, back in Athens of the 600s, death and dismemberment could be a debtor’s fate (not sure which occurred first), with sale into slavery as an alternative. Fast forward to Merry Olde England... Continue Reading →
By: Donald L Swanson Here’s a cool development on enforcing mediated settlements of international commercial disputes: 46 nations have signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Convention is linked here). A list of those 46 nations is available on this site. Resolution Adopting the Convention Here is a condensed version... Continue Reading →
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