On Bankruptcy and Mediation
By Donald L. Swanson "🎶Harmony and understanding,  Sympathy and trust abounding, . . . Aquarious🎶"         --The Fifth Dimension The year is 1968.  The musical "Hair" debuts on Broadway, with the self-assurance of those who have thrown off the norms of prior generations.  Aquarius is now here, we are assured. I'm... Continue Reading →
By: Donald L. Swanson The plan confirmation process does not provide a party to the mediation “with a renewed opportunity to challenge the [mediated] settlement to which they are bound.” --In re RPP, LLC, 547 B.R.158, 164 (Bkrtcy.W.D.Pa. 2016). The RPP, LLC bankruptcy case is a Chapter 11 reorganization, with plan confirmation occurring on June... Continue Reading →
By: Donald L. Swanson Mediation is firmly entrenched as a dispute resolution tool in bankruptcy. Mediation is commonly and regularly used throughout the bankruptcy system. And mediation’s value in bankruptcy is almost-universally recognized. A Mediation Gap But there are wide gaps in bankruptcy where mediation is still under-utilized. One of the gaps is consumer cases. ... Continue Reading →
By: Donald L. Swanson The "early parts" of a case under the reorganization chapters of the Bankruptcy Code (chapters 9, 11, 12 and 13) involve many difficult battles. Early battles are over such issues as relief from stay, cash collateral and DIP financing. The burden of litigation in such matters "can be tremendous," and such... Continue Reading →
By: Donald L. Swanson Here’s a scenario where early mediation intervention works: We’re at the beginning of a Chapter 11 case with lots of competing interests. Everyone is in a fight-every-battle mode—and there are lots of battles to fight. We’re past the initial flurry of motions for use of cash collateral and relief from stay,... Continue Reading →
By: Donald L. Swanson It's always great to see the leaders in any realm continue to innovate. The Bankruptcy Court in Delaware is, most definitely, a leader on such matters as bankruptcy mediation. And this Court continually innovates. In 2004, for example, the Delaware Bankruptcy Court adopts mandatory mediation for preference actions. Â And a telephone-participation... Continue Reading →
By Donald L. Swanson “for the reasons set forth on the record at the Hearing, the [Motion to Compel Mediation] is DENIED without prejudice.” U.S. Bankruptcy Judge, Delaware, July 20, 2016 Energy Future Holdings Corp. files Chapter 11 bankruptcy in 2014. Along the way, it engages in a mediation process that resolves nearly all objections... Continue Reading →
By: Donald L. Swanson It's always great to see an experiment produce successes that lead to an expansion of the experimental endeavor. This success-and-expansion is exactly what's happened with mandatory mediation experiments in the Delaware Bankruptcy Court. Delaware's Mandatory Mediation The Delaware Bankruptcy Court began mandating mediation, by local rule, in preference cases back in... Continue Reading →
By Donald L. Swanson Who would ever think that mediation could serve an important role in pre-packaged Chapter 11 cases? --After all, the essence of a pre-packaged plan is speed: all major issues are supposed to be resolved in advance of the bankruptcy filing so the plan can move promptly to confirmation. But disputes do... Continue Reading →
By: Donald L. Swanson The Court’s opinion is new: entered December 23, 2016. The case is In re Hunt, Case No. 14-13109, in the New Mexico Bankruptcy Court. The dispute is between the Chapter 13 Debtor and his home mortgage lender. Scheduled value of the home is $155,000, and the mortgage lien balance is $223,631... Continue Reading →
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