On Bankruptcy and Mediation
By Donald L. Swanson The problem with early neutral evaluation is this: it’s a prediction. An early neutral evaluator is an expert, who is trying to predict what a judge, jury or appellate court will decide about the merits of a dispute. Early Neutral Evaluation – A Tricky Business Prognostication is always a tricky business. And... Continue Reading →
By: Donald L. Swanson The U.S. Supreme Court has, for four decades, been rocking the boat [that's Justice Blackmun's metaphor] on bankruptcy court authority. First, they almost kill the Code—coming within one vote of declaring the entire Bankruptcy Code unconstitutional. Then they limit and mess with it some more. And now, finally, it seems they are... Continue Reading →
By Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure. A new Rule is needed to cover two specific subjects: (i) mediation authorization, and (ii) mediation confidentiality. All other areas of mediation practice and procedure can be addressed in local rules, provided that the... Continue Reading →
By: Donald L. Swanson The case before the U.S. Supreme Court is Merit Management Group, LP v. FTI Consulting, Inc., Case No. 16-784. The bankruptcy question is whether the § 546(e) safe harbor prohibits avoidance of a transfer made through a financial institution as escrow agent. Oral arguments occurred on November 6, 2017 [Footnote 1]. Justice... Continue Reading →
By: Donald L. Swanson The voluntary mediation scheme “does remain under-used.” --October 2017 Interim Report on Mediation in England and Wales England’s Civil Justice Council is an Advisory Body established under the “Civil Procedure Act 1997” to oversee and co-ordinate “the modernization of the civil justice system.” On January 28, 2016, the Council formed a Working... Continue Reading →
By: Donald L. Swanson This article is a two-centuries history of Federal bankruptcy laws and economic conditions in the United States: from the Declaration of Independence in 1776 through the enactment of the current Bankruptcy Code in 1978. The Late 1700s In 1776, at the signing of the Declaration of Independence, thirteen colonies along the... Continue Reading →
By Donald L. Swanson Timeline for a Plan Confirmation Dispute November 11: Creditor requests an order requiring mediation November 14 (a.m.): Debtor objects to request for mediation order November 14 (p.m.): Court orders mediation December 6: Debtor and creditor reach a settlement agreement February 7: Debtor’s bankruptcy plan is confirmed This timeline is from a... Continue Reading →
By: Donald L. Swanson The U.S. Supreme Court has already dismissed one bankruptcy appeal this term as “improvidently granted.” This is an oddity. And it should have also dismissed U.S. Bank National Association v. Village at Lakeridge, Case No. 15-1509, for the same reason. Instead, the Court held oral arguments in the Lakeridge case on... Continue Reading →
By: Donald L. Swanson “Studies show that parties who have entered mediation reluctantly still benefited from the process even though their participation was not voluntary.” D. Quek, Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program, Cardozo Journal of Conflict Resolution, Vol 11:479, at 483 (Spring 2010). Dorcas Quek is arguing... Continue Reading →
By: Donald L. Swanson Financially strapped farmers and their lenders finally get some much-needed bankruptcy tax relief. Normally, pre-bankruptcy income and capital gains tax claims have a priority and non-dischargeable status in bankruptcy. And the same taxes, when arising during bankruptcy, add an administrative claim status. Some Farm History Such normal rules had a devastating... Continue Reading →
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