On Bankruptcy and Mediation
By: Donald L. Swanson Sometimes it’s helpful, in understanding our own situation, to look at someone else’s. Mediation is a common tool for resolving commercial disputes in New Zealand. A 2017 study of mediation in New Zealand reveals how it's done there: “From Anecdote to Evidence: The New Zealand Commercial Mediation Market [Fn. 1]. General Findings... Continue Reading →
By: Donald L Swanson Settlement = Assessment of Risks + Math I made up this unsophisticated formula decades ago to explain what happens when a negotiated settlement occurs in a commercial dispute. What I’ve found, since then, is that the formula holds true in the vast majority of cases—even when emotions and tempers are on edge.... Continue Reading →
By: Donald L Swanson Let’s say that a mediation among four parties or more is a “multi-party” mediation. Caucus Inadequacy Here’s how a caucus format works—inadequately—in a mediation among four parties: the mediation starts at 9:00 a.m. with a half-hour joint session to set the rules and format, whereupon, the parties split into sequestered conference... Continue Reading →
By: Donald L Swanson “Those with business, managerial, consulting, mediation and operational experience are encouraged to apply.” --From “Solicitation” by U.S. Trustee for Applicants to Serve as Subchapter V Trustees (emphasis added) Back in August of this year, the Small Business Reorganization Act of 2019 became law. It’s effective date is 180 days later—February 19, 2020.... Continue Reading →
By: Donald L. Swanson Let’s try combining a couple empirical studies on unrelated matters to support the following proposition: --The “mediator’s proposal,” as a form of choice delegation, can help parties reach settlement. The proposal becomes a portal or entryway to decision. First Study: Delegating Difficult Choices The first study is titled, “Delegating Decisions: Recruiting Others... Continue Reading →
By: Donald L Swanson There is often a tension in mediation that goes something like this: Party of the first part says: We win on a technical legal issue—100% certainty! Party of the second part responds: You do not win on that issue—100% certainty! Party of the first part reacts: Do so! Party of the second... Continue Reading →
By: Donald L Swanson “The Mediator is a nice guy, but he needed to pound harder on the other side.” —A disappointed litigator on why a mediation did not achieve settlement. This quote is a common post-mediation refrain. A Fundamental Error The quote contains a fundamental error. The error is this assumption: it is the mediator’s... Continue Reading →
By: Donald L. Swanson The American Bankruptcy Institute and St. John’s University School of Law do an annual forty-hour [yes, that’s 40-hour] “Bankruptcy Mediation Training” course in New York City. The next course is coming soon -- it’s scheduled for December 8 – 12, 2019. Here is a schedule and sign-up link. I took... Continue Reading →
By: Donald L. Swanson The case is Thomas v Midland Funding LLC, A.P. No. 17-05010 in the Bankruptcy Court for the Western District of Virginia. On appeal, it’s Civil Action No. 5:18-cv-00128 in the U.S. District Court. Odd Facts The facts of the case are a kind of, “Who knew this happens?” Debtor is in... Continue Reading →
By: Donald L. Swanson The case is Trujillo v. Tak (In re Tak), Case No. 18-ap-01217 (Bankry. C.D. Cal.). The Case Celia Trujillo sues Debtor in Superior Court of the State of California, County of Los Angeles, at Case No. BC672613, for sexual harassment and discrimination. In response, Debtor files Chapter 7 bankruptcy. Then, Celia Trujillo... Continue Reading →
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