Subchapter V Trustee: Initial And Subsequent Zoom Meetings–A Facilitation Tool

A Vise-Grip Tool By: Donald L Swanson “The [Subchapter V] Trustee shall— . . . facilitate the development of a consensual plan of reorganization.”  11 U.S.C. § 1183(b)(7). That’s what we Subchapter V trustees are supposed to do. Ok, fine.  But how are we supposed to do that? A facilitation tool that many Subchapter V trustees... Continue Reading →

Tough Guys Finish Last In Negotiations (A Study)

Finishes last? (Photo by Marilyn Swanson) By: Donald L Swanson Negotiators consider, (i) the reputation of the opposition, in an effort to decrease uncertainty, and (ii) their own reputations, recognizing that past behaviors can influence future efforts. A study examines the effects of a negotiator’s tough guy reputation on negotiation processes (fn. 1, the “Study”). Distributive... Continue Reading →

Uniform Commercial Code: 2022 Amendments — New Article 12 & Old Article 9 (Interview #3) By: Donald L Swanson This video interview provides information about about the 2022 amendments to the Uniform Commercial Code (“UCC”). It is the third of three interviews with Edwin Smith about the 2022 UCC amendments: The first interview is linked here; and The second interview is linked here. Edwin Smith is an expert on the 2022 UCC amendments... Continue Reading →

Uniform Commercial Code: 2022 Amendments — New Article 12 (Interview # 2) By: Donald L Swanson This video interview provides an explanation about the new "Article 12 -- Controllable Electronic Records," in the 2022 amendments to the Uniform Commercial Code ("UCC"). This video is the second of two interview with Edwin Smith about the 2022 UCC amendments. The first interview is linked here. Edwin Smith is an... Continue Reading →

Bankruptcy Judge = A Mediator in the Judge’s Own Court: An Old and Meritorious Idea

By: Donald L Swanson Many years ago, back when mediation is a rarity in bankruptcy disputes, I asked an old-timer this question: Why is the bankruptcy system a lagging adopter of mediation?” A Surprising Answer The old-timer gave this surprising answer: “At the time of the Bankruptcy Code's enactment, the bankruptcy judge was viewed as a... Continue Reading →

Mediation And The Boy Scouts Bankruptcy: From A Court Opinion On Plan Confirmation

Scouting? (Photo by Marilyn Swanson) By: Donald L Swanson “Without these [mediated] settlements, there is no Plan.” From Opinion on Plan confirmation, In re Boy Scouts of America, Case No. 20-10343, Delaware Bankruptcy Court, Doc. 10136, at 80 (issued July 29, 2022). The Boy Scouts of America bankruptcy has achieved a milestone: on July 29, 2022,... Continue Reading →

Face-To-Face Discussions: Studies Show It’s The Best And Most-Popular Way To Mediate

Face-to-face discussions (photo by Marilyn Swanson) By: Donald L Swanson Common Practice. A common practice in these United States is for commercial lawsuits to be mediated in a caucus-only format.  That means: the parties never see each other during the mediation, except during the mediator’s opening comments and on visits to the toilet; andthe mediator shuttles... Continue Reading →

Reputation For Honesty = Protection Against Deception In Negotiations (A Study)

Honest Abe (photo by Marilyn Swanson) By: Donald L Swanson A negotiator’s reputation for honesty minimizes the danger of being deceived. That’s the finding of a recent study. [Fn. 1, the “Study”] Background  Reputations endow negotiators with a set of expectations about their intentions and behaviors, influence interpretations of their behavior, and impact response to their... Continue Reading →

US Trustee’s “Guidelines” For Bifurcated Fee Agreements In Chapter 7

Bifurcated? (Photo by Marilyn Swanson) By: Donald L Swanson When an enforcement authority issues guidelines to its personnel for making enforcement decisions and makes those guidelines public, all who are subject to that authority should sit-up and take notice.   On June 10, 2022, the U.S. Trustee’s Office, Department of Justice, issues “Guidelines” to its personnel... Continue Reading →

Good Faith In A Mandated Mediation: Are Contempt and Sanctions Appropriate? (In re A.T. Reynolds)

Contempt of the rules of road? (photo by Marilyn Swanson) By: Donald L Swanson “the specter of sanctions and contempt spawns ancillary litigation that often eclipses the issues at the heart of the underlying dispute.” --From In re A.T. Reynolds & Sons, Inc., 452 B.R. 374, 376 (S.D.N.Y. 2011), reversing a Bankruptcy Court order of contempt... Continue Reading →

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