On Bankruptcy and Mediation
By: Donald L. Swanson The U.S. Sixth Circuit “moved to random selection” of cases for mediation because “cases that appeared to be amenable to mediation were not actually more likely to settle than any other case.” Sixth Circuit Appellate Blog, April 6, 2012. A False Assumption One of the early assumptions about mediation is that some... Continue Reading →
By: Donald L. Swanson Here are two declarations of law, by the U.S. Supreme Court and from decades ago, that screwed-up our bankruptcy world — all the way to present: “The bankruptcy power, like the other great substantive powers of Congress, is subject to the Fifth Amendment.” Louisville Joint Stock Land Bank v. Radford, 295 U.S.... Continue Reading →
By: Donald L. Swanson “Successful Mediation in International Relations” reports on a study of 79 international disputes (of which 44 were mediated) occurring between 1945 and 1989. The study identifies multiple characteristics of successful mediators in the international realm. As to each of such characteristics, the following question needs to be asked: --Does this characteristics... Continue Reading →
By: Donald L. Swanson Bankruptcy issues tend to be non-partisan and a-political. Political partisans find it hard to pick-a-side, let alone get worked-up, over such issues as adequate protection, executory contracts and absolute priority. That’s because no one likes bankruptcy, even though it’s a necessity. An Exception A historical exception, however, has been over the question... Continue Reading →
By: Donald L. Swanson “Using a sample of U.S. bankruptcy judges,” this study “asks whether a bankrupt consumer improves her situation by apologizing for breaching her promises.” From a 2013 “Bankruptcy Apologies“ study by two professors from the University of Illinois College of Law [Fn. 1]. An “apology” can be a factor (often a decisive one)... Continue Reading →
By: Donald L. Swanson The most important bankruptcy opinion from the U.S. Supreme Court, since enactment of the Bankruptcy Code in 1978, is this: --Central Virginia Community College v. Katz, 546 U.S. 356 (2006). Here’s why: Katz evaluates the U.S. Constitution’s Bankruptcy Clause against a conflicting part of the Constitution—i.e., the Eleventh Amendment; and Katz determines... Continue Reading →
By Donald L. Swanson A 2016 report on a mediation study looks at how a mediator reacts with participants. Specifically, the study evaluates what happens when a mediator: --reflects back to participants what the participants themselves express --focuses on a participant's feelings/emotions --focuses on a participant's underlying interests. Findings When a mediator does such things, participants... Continue Reading →
By: Donald L. Swanson Centuries ago (during the 1200’s) the Mongols ruled China. Mongol law in China "provided for declarations of bankruptcy.” Here are some details: —“no merchant or customer could declare bankruptcy more than twice as a way to avoid paying debts”; and —“On the third time he faced the possible punishment of execution.” [Fn.... Continue Reading →
By: Donald L Swanson You’d expect, these days, that mediation confidentiality is enforced everywhere. But that expectation is wrong. Bankruptcy Hypothetical Let’s start with a bankruptcy hypothetical: Debtor is a small business in Chapter 11 and hopes to reorganize—not liquidate. Debtor reaches a mediated settlement with a large creditor, removing an obstacle to reorganization. Mediating parties... Continue Reading →
By: Donald L Swanson The majority’s opinion “permits Vandelay to reap a windfall that borders on the obscene.” Hon. William B. Cassel, Nebraska Supreme Court Justice, Dissenting in Wisner v. Vandelay Investments, L.L.C. (Decided 8/24/2018). You’re not going to believe this . . . seriously. Facts of the Case In 2014, Vandelay Investments acquired 650 acres... Continue Reading →
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