On Bankruptcy and Mediation
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 →
By Donald L. Swanson Examples of “an alternative dispute resolution process” include, “early neutral evaluation, mediation, minitrial, and arbitration.” --28 U.S.C. § 651(a) (from the Alternative Dispute Resolution Act of 1998). Over time, the word “mediation” has come to be a shorthand term encompassing all non-binding alternative dispute resolution processes. And the result is often a... Continue Reading →
By Donald L. Swanson Fraudulent conduct is as old as humanity itself. And it’s not going away. A Distinction: Bad Fraud v. Desperate Fraud Not all fraud is alike. --Two Illustrations My first experiences with fraud [or what might have been fraud – I’m not really sure] are in early high school days. Growing up on... Continue Reading →
"Hallway Mediation" is this: Putting multi-party disputants into a room to talk about their disputes, with the mediator orchestrating (or maybe it's refereeing) the event. I call it "Hallway Mediation" because that's where I first saw it happen and learned to do it: in the hallways outside the Bankruptcy Courtrooms in Omaha, Lincoln and North... Continue Reading →
By Donald L. Swanson I’m irritated [not that anyone actually cares]. Here’s why. Federal Arbitration Act I’ve been reading some bankruptcy cases on requirements of the Federal Arbitration Act. These cases talk about submitting a bankruptcy dispute to arbitration based on an arbitration provision in the disputing parties’ pre-petition contract. Never mind that the dispute is... Continue Reading →
By: Donald L. Swanson In the case of In re Sabine Oil & Gas Corp., Case No. 15-11835 (Bankry. S.D.N.Y.), the bankruptcy judge authorizes and terminates two separate mediation efforts by the following orders: --January 5, 2016 – “Order Selecting Mediator and Governing Mediation Procedures” (Doc. 669). --May 2, 2016 – “Order Terminating STN... Continue Reading →
By: Donald L. Swanson Eighty nine years ago (on November 7, 1928), the U.S. District Court for the Western District of South Carolina issues this ruling (see photo above): “Yellow Poplar Lumber Company, a Corporation, . . . is hereby declared and adjudged a bankrupt.” The Yellow Poplar bankruptcy has been administered, concluded and closed since... Continue Reading →
By: Donald L Swanson “[T]he parties should be prepared to engage in mediation before the Court fixes any evidentiary hearing.” Bankruptcy Judge Kevin J. Carey, In re AWI Delaware, Inc., Case No. 14-12092 (Bankry. Del., opinion dated 6/28/2017). Did you ever see a play in a sporting event that’s both imaginative and effective? And your reaction... Continue Reading →
MEDIATBANKRY 