On Bankruptcy and Mediation
By: Donald L. Swanson “Leadership is a perpetual exercise in managing conflict.” --Morris Shechtman, 2003 A 2016 report on a mediation study evaluates and compares the effects on conflict of: (i) mediators who elicit solutions from parties in conflict, and (ii) mediators who offer opinions and solutions to the parties in conflict. Mediator Eliciting Solutions from Parties... Continue Reading →
By: Donald L. Swanson There is “no mutual meeting of the minds concerning the terms” of the mediated and Court-approved settlement agreement. Therefore, the agreement “is not an enforceable contract.” --In re Singh, Case No. 15-02159, Doc. 33 (Bankry. N.J., Oct. 5, 2016). Procedural Background Two adversary proceedings are filed in the Chapter 7 case... Continue Reading →
By: Donald L. Swanson The concepts of “failure” and “success” in a mediation typically refer to whether a settlement agreement is achieved during the mediation session. I’ve always felt uneasy about the use of such “failure” and “success” terms in this way. --I can’t quite put a finger on the source of unease. But it’s like... Continue Reading →
By: Donald L. Swanson “What do empirical studies tell us about court mediation”? This question is asked and answered in a 2004 article. The authors of the article are examining “empirical data” and looking for “best practices” in programs that mediate non-family civil matters. The practices they identify as “best” are those that promote “regular... Continue Reading →
By: Donald L. Swanson Here’s an experience that’s common to all trial attorneys. We’re working in our litigation War Room. Trial is scheduled to begin in ten days. Our focus on trial preparations is intense. But then the phone rings. It’s an attorney on the other side with a settlement offer. The offer is a... Continue Reading →
By: Donald L. Swanson “There is nothing new under the sun.” --Ecclesiastes 1:9 My first-hand knowledge of China is limited: I’ve traveled to Beijing a couple times, spent time (both there and here) with Chinese citizens, practiced law with a Chinese national, etc. But here is something I’ve never understood: --How are personal and business... Continue Reading →
By: Donald L. Swanson Some not-surprising facts about professional fees in the Nortel Networks bankruptcy are: --The total amount is massive; and --The burn-rate continues without abatement. Keep in mind that: --The primary question in the Nortel Networks bankruptcy is this: How should a $7.3 billion sale proceeds fund be distributed? --Professional fees in the... Continue Reading →
By: Donald L. Swanson Hypothetical: Bank’s borrower is in a lawsuit. Legal fees are mounting, with no end in sight. The attention of borrower’s management is consumed by it. Borrower’s business is suffering. And Bank wants borrower to get the case resolved. Question: Can Bank suggest, insist, or even demand, that customer schedule a mediation... Continue Reading →
“Nothing will lower your credibility faster than avoiding conflict.” --Morris Shechtman, 2003 By Donald L. Swanson Conflict is difficult. And conflict is uncomfortable. So, the easiest and most comfortable way to handle conflict . . . is to avoid it. That's why caucus-only mediation has become standard practice in many mediations of business disputes. In... Continue Reading →
By: Donald L. Swanson When mediation occurs early-in-a-case, instead of late, “cases are more likely to settle, fewer motions are filed and decided, and case disposition time is shorter, even for cases that do not settle.” --B. McAdoo, N. Welsh & R. Wissler, “What Do Empirical Studies Tell Us About Court Mediation?” (2004) A lawsuit... Continue Reading →
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