On Bankruptcy and Mediation
By: Donald L Swanson “Congress shall have Power”: “To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States”; and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” U.S. Constitution, Art. I, Sec. 8, cls. 4 & 18 (emphasis added). Any opinion... Continue Reading →
By: Donald L. Swanson We “sought to determine whether the reasons for mediator success are the same for all successful mediators, or whether different mediators succeed for different reasons.” Prof. Stephen B. Goldberg and Margaret L. Shaw in a 2008 report titled, “The Secrets of Successful (and Unsuccessful) Mediators.” The study: In their study, Prof.... Continue Reading →
By: Donald L. Swanson Tuesday, July 31, 2018, is the last day of Anthony Kennedy’s three-decades-long service as a Justice of the U.S. Supreme Court (since February 18, 1988). On bankruptcy issues, Justice Kennedy did not author many opinions of any sort (majority, concurring or dissent). Nevertheless, he has always been a part of what I... Continue Reading →
By: Donald L. Swanson The U.S. Supreme Court has a history of screwing-up our bankruptcy world. Examples go back to the 1982 debacle called Northern Pipeline v. Marathon Pipe Line, where the Supreme Court came within one vote (one vote!) of declaring the entire Bankruptcy Code unconstitutional. A more recent example, Stern v. Marshall in 2011,... Continue Reading →
By: Donald L Swanson Actually, the U.S. Supreme Court does . . . but they’re wrong. Here’s why. Some History Back in early 1980s, when the Bankruptcy Code was but a few years old, the U.S. Supreme Court struggled with bankruptcy court jurisdiction. --Northern Pipeline That struggle resulted in the Supreme Court's 1982 Northern Pipeline v.... Continue Reading →
By Donald L. Swanson England and Wales have a Civil Justice Council that, in 2016, formed an ADR Working Group to "review the ways in which" mediation is "encouraged and positioned within the civil justice system." In October, 2017, the Working Group issued its "Interim Report." Low Value Cases and Litigants Without Means One focus of... Continue Reading →
By Donald L. Swanson “Lending to the most highly indebted companies in the U.S. and Europe is surging.”— Wall Street Journal [Fn. 1] When a large business files for bankruptcy, there is one group that almost always suffers. It is a group with little-to-no power. It is the unsecured trade creditors. It is those that supply... Continue Reading →
By: Donald L. Swanson I have a new LinkedIn friend, Mark Winters from the U.K., who’s developed a mediation practice within an unusual context. And he’s making it work. Since the practice arose from his own creativity and out of unusual circumstances, he’s unbounded by common norms and can do creative things. One creativity is this:... Continue Reading →
By: Donald L Swanson Many people live the American Dream. They’ve started a business and are succeeding. They’re what makes the U.S. economy work. But bad things can—and do—happen to them: things like product obsolescence, economic downturn, health problems, a costly mistake, bad luck. Such things can destroy their Dream and can destroy the entrepreneurs themselves.... Continue Reading →
By Donald L. Swanson On June 12, 2017, the American Bar Association’s Section of Dispute Resolution published its “Report of the Task Force on Research on Mediator Techniques.” Notably, this report makes no reference to any research on bankruptcy mediation — not even a single study. The following article consists of four parts: --Summary of the... Continue Reading →
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