On Bankruptcy and Mediation
Persisting through early failures (photo by Marilyn Swanson) By: Donald L. Swanson “Failure” in a mediation is difficult to define. For hypothetical examples: Is it a “failure” when a lawsuit fails to settle in a mediation session?Is it a “failure” when a lawsuit fails to settle in a second mediation session?Is it a “failure” when, (i)... Continue Reading →
By: Donald L Swanson Lots of things are wrong with the case of Ripa v. Perfetti [Fn. 1]. The ills start with this fact: all parties are pro se. The case illustrates, once again, that limitations exist on the problems mediation can solve. In this case, a frustrated Bankruptcy Judge encourages the parties to mediate: one side... Continue Reading →
An early end By: Donald L Swanson “The term of a Subchapter V plan can be less than three years, based upon the language of the statute!” --A Bankruptcy Judge's comment at a bankruptcy conference in December 2019 (as I recall it). Upon hearing that comment, I went scrambling to find the statutory language. And here... Continue Reading →
Bad form: Angus cattle on a road at dusk! (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is dated November 9, 2020, and appears in the jointly administered cases of In re Nilhan Developers, LLC, Case No. 15-58443 (Northern Georgia Bankruptcy Court) (Doc. 206), and In re Bay Circle Properties, LLC, Case No. 15-58440... Continue Reading →
Getting started (Photo by Marilyn Swanson) By: Donald L Swanson The American Bar Association published an article titled, “Draft the Settlement Agreement First,” by John Bickerman. [Fn. 1] The article begins with the following: “One of the most effective techniques I know and use as a mediator is to begin negotiating the terms of the settlement agreement before... Continue Reading →
What is his perspective? (photo by Marilyn Swanson) By: Donald L Swanson Have you ever been in a mediation—or other negotiation context—where one party blows-up in a fit of anger? And wondered about the effect of that moment on the negotiation effort? A 2019 study on "Losing your temper" shows that “anger reduces perspective-taking.” [Fn. 1]... Continue Reading →
By: Donald L. Swanson “By providing you with this notice, [creditor’s name] is merely complying with the notice requirements under the Nebraska Farm Mediation Act. [Creditor’s name] does not, in any way, acquiesce to participation in the mediation process with you.” --Two sentences from a creditor’s notice of mediation rights to a debtor under Neb. Rev.... Continue Reading →
Uniformity (photo by Marilyn Swanson) By: Donald L Swanson The U.S. Constitution requires that bankruptcy laws be “uniform . . . throughout the United States.” Among such uniformity requirements is this: rulings on core bankruptcy issues must be subject to meaningful appellate review—all the way to the U.S. Supreme Court. Explaining this requirement is the dissent... Continue Reading →
The way is paved (photo by Marilyn Swanson) By: Donald L Swanson The parent company of menswear chains Jos A. Bank and Men’s Wearhouse filed Chapter 11 bankruptcy on August 2, 2020. And it achieved a confirmed plan on November 13, 2020. The case is In re Tailored Brands, Inc., Case No. 20-33900 in the Southern... Continue Reading →
Affiliates? (photo by Marilyn Swanson) By: Donald L Swanson "The term 'small business debtor'— . . . (B) does not include—(i) any member of a group of affiliated debtors that has aggregate noncontingent liquidated secured and unsecured debts in an amount greater than [$7,500,000] (excluding debt owed to 1 or more affiliates or insiders)." --11 U.S.C. §... Continue Reading →
MEDIATBANKRY 