The ADR Spectrum: Subchapter V Adds A New / Unique ADR Role

The ADR Spectrum By: Donald L Swanson Alternative dispute resolution (“ADR”) has always referred to the use of a neutral third party to help resolve disputes.  But the recent addition of Subchapter V to the Bankruptcy Code has changed that.  I’ll try to explain. Alternative Dispute Resolution Act of 1998 28 U.S.C. § 651(a) is part... Continue Reading →

Informal Mediation for Small Businesses in Financial Stress

By: Donald L. Swanson Pre-litigation mediation opportunities are provided in many farm states before a creditor can pursue legal action against a farmer on a delinquent obligation.  Such early mediation efforts are highly effective in resolving disputes. Similarly, small businesses in financial stress and their creditors might engage in early efforts to forestall credit disputes. ... Continue Reading →

Judge Kornreich: On Judicial Mediators And Private Mediators (An Interview) By: Donald L Swanson The above interview talks about mediators in general and about judicial mediators (i.e., a sitting judges) and private mediators more specifically; and it offers suggestions for practitioners on choosing a mediator. Hon. Louis H. Kornreich (Ret.) is well-qualified to speak on such matters because of his, (i) long and distinguished service... Continue Reading →

Mediating Discharge Disputes—A Tough Task

A tough task (photo by Marilyn Swanson) By Donald L. Swanson Lawsuits opposing discharge are tough, to begin with. That’s true whether the action is under Sec. 523 (opposing discharge of the plaintiff’s claim) or under Sec. 727 (opposing discharge of all claims). Here are some reasons why: A revenge-type motivation is commonly involved, since all... Continue Reading →

What Qualifies As “Engaged In Business Or Commercial Activities” For Subchapter V Eligibility? (In re U Stop)

Engaged in business or commercial activities? (photo by Marilyn Swanson) By: Donald L Swanson Negotiating a lease for office space in a portion of the debtor's business premises qualifies as “engaged in commercial or business activities" on the petition date for Subchapter V eligibility.  That’s the ruling by Hon. Charles L. Nail, Jr., Bankruptcy Judge for... Continue Reading →

Court Order For Mediation Of Plan Confirmation Disputes (In re Garrett)

A mediation session? (photo by Marilyn Swanson) By: Donald L Swanson Every now and then, something happens that can serve as a model or form or checklist for similar situations.  Chapter 11 plan confirmation disputes are often complex and involve multiple parties.  In the case of In re Garrett Motion, Inc., (Case No. 20-12212, S.D.N.Y. Bankruptcy),... Continue Reading →

Gaining Insight Into Mediating Parties’ Psychological States, Based on “Gaze Behavior”

Averting the gaze (photo by Marilyn Swanson) By: Donald L Swanson A “listeners’ gaze behavior may serve as a readily observable and quantifiable marker of psychological states relevant for . . . mediators.” [Fn. 1, emphasis added.] One day, back when this could still happen, I’m sitting in a waiting room with a bunch of strangers. ... Continue Reading →

Study: Early Referrals To Mediation, With Opt-Out for Good Cause, Are Effective

A courthouse (photo by Marilyn Swanson) By: Donald L Swanson When an opt-out for good cause exists, early referral of a case to mediation facilitates settlement. --This conclusion is from a “large sample” study of mediations involving the federal government as party defendant. The “large sample” study is reported as, “Dispute Resolution and the Vanishing Trial:... Continue Reading →

Practicalities of Mediating Via Zoom

By: Donald L Swanson What follows is a script (more or less) of a panel presentation I gave on December 11, 2020, in a webinar sponsored by the American Bar Association. A revised version is published in by the American Bar Association at this link. Practicalities for conducting a mediation session by Zoom (or similar... Continue Reading →

City of Chicago v. Fulton: What the Supreme Court DID NOT Decide

City of Chicago (Photo by Marilyn a Swanson) By: Donald L Swanson The new U.S. Supreme Court’s bankruptcy opinion is City of Chicago, Illinois v. Fulton, et al., Case No. 19-357, issued January 14, 2021. Facts and Ruling Here’s how the Supreme Court summarizes the facts of the case and its ruling. In the case before... Continue Reading →

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