On Bankruptcy and Mediation
By: Donald L. Swanson There’s a lawsuit now in progress in a Florida Federal Court over a local pub. The Pub Dispute Plaintiff claims to be "a franchisor” of “establishments” that sell “imported and domestic beers” and other products used in “a distinctive pub environment.” Plaintiff also claims to have “methods and procedures—a system—” that... Continue Reading →
By Donald L. Swanson Puerto Rico is dealing with the storms of financial disaster and a hurricane’s aftermath. Here is a false narrative about the financial storm: Forgiving Puerto Rico’s debt “would only free Puerto Rico’s politicians from having to address the policies that were suffocating its economy to begin with.” --Wall Street Journal Op. Ed.,... Continue Reading →
By: Donald L. Swanson What do mediating parties say about their mediators? That’s what Prof. Stephen B. Goldberg and Margaret L. Shaw wanted to know. So, they do a study and report on it back in 2008, as follow-up to a prior study. And the mediating parties are more-than-happy to hand out reviews. Prior Study... Continue Reading →
By Donald L. Swanson During the entire existence of the Bankruptcy Code (enacted in 1978), Chapter 11 rules have been essentially the same for large and small businesses. General Motors, for example, is governed by the same Chapter 11 bankruptcy rules that govern every small Mom & Pop enterprise. I've always thought this same-treatment to... Continue Reading →
By: Donald L. Swanson The U.S. Circuit Courts of Appeals have, for many years, administered their own mediation programs for civil cases. The administrators and mediators in such programs are, typically, Federal employees. Such mediation programs are also characterized, typically, by the following: --mandatory referral of cases to mediation with no-extra-charge for mediator services --mediation... Continue Reading →
By Donald L. Swanson Imagine this: opposing political partisans singing Kumbayah together over bankruptcy issues and laws! It could happen. It’s because of this rule of thumb: --There is no political constituency for bankruptcy issues – such issues are nonpartisan and apolitical. Put another way, neither conservatives nor liberals nor moderates (nor any other political partisan)... Continue Reading →
By: Donald L. Swanson Prof. Stephen G. Goldberg surveyed 30 experienced and successful mediators: 28 had mediated at “least 100 disputes,” and 2 had mediated “more than 50 but less than 100.” He wanted to know “how they accounted for their successes.” Prof. Goldberg reports his survey findings in, “Mediators Reveal Their Essential Techniques for... Continue Reading →
By Donald L. Swanson This article is in follow-up to a prior one titled, "Federal Arbitration Act vs. Stern v. Marshall: So . . . What's Fair About This?" The point here is that we need a bankruptcy exception to the Federal Arbitration Act. Litigation in bankruptcy: Here's how the issue arises. A Chapter 7, 11,... Continue Reading →
By: Donald L. Swanson “Mandatory mediation” is a self-explanatory term. It means this: –Disputing parties are required by court order or rule of law to participate in a mediation session. Mandatory mediation is a common tool for resolving disputes. However, a reticence still exists, in much of the bankruptcy world, toward mandatory mediation. The sources... Continue Reading →
By: Donald L. Swanson The fact scenario is this. An S corporation pays its own taxes each year. Then it files bankruptcy. So, the bankruptcy trustee sues the IRS for recovery of those tax payments as fraudulent transfers. It does so under two different sections of the Bankruptcy Code: (i) Under § 548, for payments within... Continue Reading →
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