Author: mediatbankry

My name is Donald L. Swanson (please call me “Don”). I’m an attorney in Omaha, Nebraska, and am a shareholder in the law firm of Koley Jessen P.C., L.L.O. I’ve been practicing business bankruptcy law for more than four decades and represent all types of bankruptcy constituencies, including debtors, creditors, committees, trustees, and § 363 purchasers. I have extensive mediation experience in both bankruptcy and non-bankruptcy courts. Moreover, I have a decades-long background in resolving multi-party disputes while representing committees and trustees.

Assertive Mediator Techniques Produce More Agreements and Greater Satisfaction–A Mediation Study

By: Donald L. Swanson “we were surprised to find that mediators could use assertive strategies to obtain settlements without overly sacrificing disputant satisfaction with the mediation.” Friendly Persuasion in Civil Case Mediations, by James A. Wall & Suzanne Chan-Serafin, 31(3) Conflict Resolution Quarterly at 285-303 (2014). The “Friendly Persuasion” article is about a study that tests the... Continue Reading →

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Getting Away With Corporate Raiding: A New In re Tribune Opinion and § 546(e) Safe Harbor

By: Donald L. Swanson The Tribune Company (yes, the formerly-venerable Chicago Tribune newspaper) filed bankruptcy in 2008, after being crippled by a corporate raid in 2007 Here’s What Happened Tribune’s dominant shareholders (they owned 33%) wanted to cash out their shares of stock. So they engineered a scheme, whereby Tribune borrowed money to buy its... Continue Reading →

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The Problem of Mediating While a Court Ruling is Imminent

By: Donald L. Swanson “[W]e are unaware of any authority suggesting that a district court may not rule on a pending motion for summary judgment while the parties may be attempting to settle the matter outside of court.” --Third Circuit Court of Appeals in Myrick v. Discover Bank, Case No. 16-1966, fn. 6 (10/7/2016). The... Continue Reading →

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Congress Needs to Help Family Businesses in Financial Stress — Not Punish Them!

By: Donald L. Swanson We live and work in a market economy, here in these United States. The market is our economic judge: it validates—or invalidates—business decisions, and it picks winners and losers. The market is an efficient, impartial and unbiased judge. But it is also cruel and unforgiving. The result is that many businesses succeed.... Continue Reading →

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Mediating “One-Off Disputes” vs. “Relationship Disputes” — And the Significance of Settlor’s Remorse in Each

By: Donald L. Swanson Like snowflakes and fingerprints, no two mediations are alike. And the mediator, in any given dispute, must adjust to the peculiarities of the issues and parties at hand. Take, for example, differences between mediating what I’ll call “one-off disputes” vs. “relationship disputes” in business contexts. Definitions Let’s say, for discussion purposes, that:... Continue Reading →

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History of Bankruptcy: From the Torah, the Talmud and the Mishnah

By: Donald L. Swanson For starters, see my "Disclaimer" below. “The Torah is the Hebrew Bible,” consisting of the books of Genesis, Exodus, Leviticus, Numbers, Joshua, Psalms, Book of Ruth, etc.; and the Talmud “is the compilation of the historical rabbis ‘discussing’ or ‘debating’ what the Torah means.” [Fn. 1] The Mishnah is “an edited record”... Continue Reading →

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How a Bankruptcy Court Refuses to Approve a Mediated Settlement Agreement

By: Donald L. Swanson One of the crucial rules of mediation is this: all pertinent parties need to be included in the mediation session. That’s because excluded parties can blow-up a mediated deal. Bankruptcy System In bankruptcy, interested parties are everywhere—and they can’t all be included in every mediation. That’s a problem. So, the Bankruptcy Code... Continue Reading →

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Justices Scalia and Kennedy — Their Impact on Bankruptcy Court Authority

By Donald L. Swanson Two long-standing members of the U.S. Supreme Court—each served three decades—are recently departed from the Bench: Justice Antonin Scalia served from September 26, 1986, until his death on February 13, 2016; and Justice Anthony Kennedy served from February 18, 1988, until his retirement on July 31, 2018. Both of these Justices had... Continue Reading →

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Practicing Attorneys (Not Sitting Judges) Serving as Mediators: An Innovation from the 1970s

By: Donald L Swanson The use of practicing attorneys -- instead of sitting judges --  to serve as mediators is an early-innovation from Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals. This innovation occurs, back in the 1970s, amid “wide disagreement” about the effectiveness of attorneys as mediators. Back then, Judge... Continue Reading →

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The Constitution’s Bankruptcy Clause — A Struggle for Judicial Recognition

By: Donald L Swanson Bankruptcy laws in these United States have always struggled for acceptance by the judiciary. Judicial Restrictions on Congress’s Bankruptcy Power Federal courts, in many respects since 1800, have tried to restrict the bankruptcy power granted to Congress by the U.S. Constitution [Fn. 1]. For example: --In the 1800s and early 1900s, courts... Continue Reading →

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